Gavin Howe
Sanctuary policies are a set of laws that aim to provide refuge to undocumented immigrants, their families, and those who engage in social and economic transactions with them. These policies are often implemented by jurisdictions that choose not to comply with federal immigration enforcement. While sanctuary policies do not conceal or shield immigrants from detection or prosecution, they do provide a degree of safety by restricting the holding of immigrants in state or local jails beyond their release date for immigration violations. This has led to debates about the legality of sanctuary policies, with critics arguing that they can shield dangerous criminals and expose officials to legal consequences. However, supporters contend that enforcement of federal immigration law is not the duty of localities, and that law enforcement resources can be better utilized elsewhere.
| Characteristics | Values |
|---|---|
| People who can be detained under sanctuary law | Noncitizens/illegal aliens/undocumented immigrants |
| Reasons for detention | Criminal charges, final orders of removal, civil offenses |
| Who can detain | Federal government, state and local law enforcement, local jails, sanctuary jurisdictions |
| Who cannot detain | Sanctuary jurisdictions |
| Who must not be detained | Citizens |
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What You'll Learn
Undocumented immigrants with criminal charges
Sanctuary policies are local laws that aim to promote cooperation between law enforcement and immigrant communities, regardless of immigration status. They do not conceal or shelter undocumented immigrants from detection, nor do they shield immigrants from deportation or prosecution for criminal activities. Instead, they direct local law enforcement to focus their resources on other priorities.
Some sanctuary jurisdictions may have policies that direct local law enforcement to honor ICE detainers or notify ICE of an individual's release from custody, but only under limited circumstances, such as when the individual has been convicted of a serious or violent crime. In some states, laws have been passed to prohibit local governments from enacting sanctuary policies, and to impose penalties on officials who adopt such policies.
According to U.S. Immigration and Customs Enforcement (ICE), there were over 647,000 illegal aliens in the United States with final orders of removal, including those with criminal charges pending against them. Opponents of sanctuary cities argue that these policies can end up shielding dangerous criminals, but studies have shown that sanctuary cities either have no impact on crime or that they lower the crime rate.
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Local law enforcement
Sanctuary policies are local laws that aim to provide refuge to undocumented immigrants and their families. They are prevalent in "'blue'" or liberal-leaning states in the US, which tend to support migrant rights. These policies do not conceal or shelter undocumented immigrants from detection, nor do they shield them from deportation or prosecution for criminal activities.
On the other hand, sanctuary policies direct local law enforcement to limit their cooperation with federal immigration enforcement. This may include refusing to honour immigration detainers, which are non-binding requests from ICE to maintain custody of an individual beyond their scheduled release so that ICE can take over custody. Some sanctuary jurisdictions only honour detainers if the individual has committed a serious or violent crime.
In addition, local law enforcement may be asked to refrain from questioning people about their immigration status or sharing information with federal immigration authorities. They may also be prohibited from granting federal immigration agents access to physical sites controlled by the locality.
Overall, local law enforcement in sanctuary jurisdictions must carefully balance their commitment to providing refuge to undocumented immigrants with the risk of violating federal law and facing legal consequences.
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State and federal laws
Sanctuary policies are not federal or state laws but rather policies adopted by municipalities, cities, or states. These policies are varied and depend on the specific jurisdiction. However, they are generally aimed at neutrality or nonparticipation in immigration enforcement.
Some sanctuary policies include provisions stating that the jurisdiction will not honour detainers. Detainers are non-binding requests from U.S. Immigration and Customs Enforcement (ICE) that a state or local law enforcement agency maintain custody of an individual for up to 48 hours beyond the time they would otherwise have been released, so that ICE can take over custody.
Some states, such as North Carolina and Arizona, have banned sanctuary cities. In North Carolina, a state law restricts any city or municipality from refusing to cooperate with federal immigration and customs enforcement officials. In Arizona, a state law requires local authorities to contact federal immigration authorities if they suspect that a person they have detained or arrested is in the country illegally.
While the federal government cannot force local jurisdictions to honour detainers, some argue that sanctuary policies that forbid compliance with federal immigration law and cooperation with federal officials are breaking the law. Federal law states that aliens unlawfully present in the United States are subject to removal from the country, and it is a crime to conceal, harbour, or shield them. It is also a crime to prevent federal officials from enforcing immigration law.
However, courts have repeatedly held that the Tenth Amendment prohibits the federal government from compelling states and localities to participate in immigration enforcement. Additionally, some state courts have ruled that state laws do not provide legal authority for law enforcement agencies to hold people on an immigration detainer.
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Non-compliance with federal immigration enforcement
Sanctuary policies are not designed to conceal or shelter undocumented immigrants from detection. They do not shield immigrants from deportation or prosecution for criminal activities. Instead, they limit the cooperation of state and local officials with federal immigration officials, but they do not actively prevent federal officials from carrying out their immigration enforcement duties. For example, a sanctuary jurisdiction may have a policy that directs local law enforcement to only honour detainers if the individual in question has been convicted of a serious or violent crime.
Compliance with immigration detainers is voluntary, not mandatory. The federal government cannot force local jurisdictions to honour detainers, as this would violate the Tenth Amendment of the U.S. Constitution, which prohibits the federal government from compelling states and localities to participate in immigration enforcement. Some state courts have also ruled that the laws of their state do not provide legal authority for law enforcement agencies to hold people on an immigration detainer.
However, federal law is clear that aliens unlawfully present in the United States are subject to removal from the country, and it is a crime to conceal, harbour, or shield them, or to prevent federal officials from enforcing immigration law. Under the Supremacy Clause of the U.S. Constitution, these federal laws supersede any State or local laws to the contrary, and all State and local officials must comply with them. Federal law imposes serious consequences for obstructing the execution of federal immigration law, and jurisdictions that do not comply may be exposed to potential personal financial liability to private plaintiffs.
Some states have passed laws punishing localities for passing sanctuary policies, and some have passed laws that attempt to force state and local law enforcement to become a de facto arm of the federal detention and deportation system. These include Alabama and Tennessee, which have broad anti-sanctuary laws with significant negative effects for their immigrant residents, and Florida, Georgia, Iowa, Texas, and West Virginia, which have particularly aggressive and comprehensive anti-sanctuary laws that force local agencies to be significantly involved in deporting their constituents.
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Immigration status and local law
Sanctuary policies are local laws that limit cooperation with federal immigration enforcement. They do not conceal or shelter undocumented immigrants from detection, nor do they shield immigrants from deportation or prosecution for criminal activities. State and local police still enforce state and local criminal laws against immigrants accused of committing a crime in sanctuary jurisdictions.
One of the most common forms of sanctuary policy is a restriction on holding immigrants in state or local jails following a “detainer” issued by ICE. A detainer is an official but non-binding request from ICE that a state or local law enforcement agency maintains custody of an individual for up to 48 hours beyond their release date so that ICE can take over custody. Federal actions intended to force local jurisdictions to perform immigration enforcement are likely unconstitutional. The Tenth Amendment of the U.S. Constitution prohibits the federal government from compelling states and localities to participate in immigration enforcement.
Courts have repeatedly held that the federal government cannot force local jurisdictions to honor detainers. Some state courts have ruled that law enforcement agencies do not have the legal authority to hold people on an immigration detainer. Jurisdictions that do honor detainers can be found liable for unlawfully holding an individual without a judicial warrant, in violation of the Fourth Amendment, and may be required to compensate individuals for damages.
Sanctuary jurisdictions may rent jail space to the federal government to house immigrant detainees through Inter-Governmental Service Agreements (IGSAs). Some states have tried to prohibit or limit immigration detention. Sanctuary jurisdictions may have policies that direct local law enforcement to, under limited circumstances, honor ICE requests to be notified of an individual’s release from local custody or comply with immigration detainers. For example, a policy might direct local law enforcement to only honor detainers if the individual has been convicted of a serious or violent crime.
While the Department of Justice (DOJ) has filed litigation to challenge sanctuary jurisdictions, neither the Constitution nor any federal statute prohibits policies that limit cooperation with federal immigration enforcement. However, federal law imposes serious consequences for obstructing the execution of federal immigration law, and so-called “sanctuary” jurisdictions that forbid compliance with federal immigration law are breaking the law. Sanctuary jurisdictions are strictly prohibited from requiring their employees to violate federal immigration law.
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Frequently asked questions
Sanctuary laws are policies that aim for nonparticipation in immigration enforcement. These laws forbid compliance with federal immigration law and cooperation with the officials who enforce it.
Sanctuary laws do not conceal or shelter unauthorized immigrants from detection. State and local police still enforce state and local criminal laws against immigrants accused of committing a crime in sanctuary jurisdictions.
Federal law imposes serious consequences for obstructing the execution of federal immigration law. Breaking sanctuary laws can lead to criminal liability under multiple federal criminal conspiracy statutes.
Detainers are official but nonbinding requests from ICE for local law enforcement to maintain custody of an individual beyond their release time, so that ICE can take over custody.
Yes, jurisdictions can legally refuse to comply with detainers. Courts have repeatedly held that the Tenth Amendment prohibits the federal government from compelling states and localities to participate in immigration enforcement.
