Shaping Sanctuary

​As the holding and deportation of illegal immigrants from the United States took center stage over the summer, cities and states felt increasing pressure to pick a side. Should they enact so-called sanctuary city policies, limiting federal involvement in their law enforcement activities, and foster relationships with immigrant communities? Or should they work with federal officials to assist in detaining and deporting illegal immigrants, sometimes for profit?

The Trump administration's sweeping crackdown on undocumented citizens has affected a swath of people, from families crossing into the United States illegally to immigrants who have lived in the country for years. Most of U.S. President Donald Trump's message surrounding immigration enforcement has revolved around arresting and deporting criminals, making jails and prisons a target for federal authorities. And as some communities have begun making decisions about their level of support for U.S. Immigration and Customs Enforcement (ICE) within local judicial systems, it became clear just how complex the issue is.

Travis County, Texas—home to the state's capital, Austin—enacted a policy that prevents detention of individuals based solely on their immigration status in November 2016. While Austin's police department has not taken a public stance on cooperation with ICE, leaders have stated they will not focus on a person's immigration status but will still partner with federal agencies in immigration matters if the case involves criminal activity.

Travis County's proclamation sparked state legislators to pass an anti-sanctuary bill that, among other things, allows all law enforcement officials to ask detained individuals about their immigration status and requires them to honor immigration detainment requests from ICE. And while Austin has fought back against the bill, several state, county, and city law enforcement agencies operate within the city—including the police department, four county sheriff's departments, and the Texas Highway Patrol—making it more difficult to enact an across-the-board sanctuary policy.

Similar complications are playing out further east. Charlotte, North Carolina, attempted to put immigration protections in place in 2015, passing a resolution that prohibited the city's police department from inquiring about the immigration status of the people it came across, but—much like in Texas—state legislators prohibited policies that curbed the collection of immigration status information. In this case, though, the Mecklenburg County Sheriff's Office has maintained an agreement with ICE that allows them to identify and detain illegal immigrants.

And taking precedence over the policy complexities within states, counties, and cities is Trump's 2017 executive order to withhold funds and otherwise punish some 300 cities and officials that do not cooperate with ICE. The sanctuary city ban entered a legal back-and-forth, with one court blocking the order nationwide, and an appellate court later determining that Trump could not withhold funds from cities, but that the nationwide block of the order was too broad. The case will be sent back to a lower court to determine whether a wider ban is needed.

While local police departments may implement policies to build relationships with the city's immigrant community, county sheriff departments—which largely own local jails—may have more impact on a community's sanctuary policies, says Bipartisan Policy Center (BPC) political analyst Cristobal Ramon.

"I think that as this issue has really been spreading across the country and become a core part of the debate, that's where the pressure is coming from," Ramon tells Security Management.

"Independent of what states are doing with the laws and on the ground, a county sheriff's office may promote cooperation or not promote cooperation with ICE for a range of different reasons."

Ramon coauthored a February 2018 BPC report on the nexus between immigrants, the immigration enforcement system, and local law enforcement. The report focuses on immigrants who are detained in local jails, either awaiting trial or serving out terms of less than one year. There are many aspects that go into what makes a sanctuary city, but Ramon says one of the cornerstone aspects is what goes on inside city jails.

"These agencies can have a variety of policies that promote or limit the capacity of ICE to access noncitizens in their facilities…and these policies can be independent of the local police departments who do the majority of arrests and bookings," the BPC report states.

Sheriff's offices are already deeply intertwined with ICE operations—about half of ICE's total detention population is housed in state and local jails and facilities, including one of Mecklenburg County's jails. The BPC report outlines the varying levels of involvement sheriff's departments can play in federal immigration enforcement, from identifying illegal immigrants and reporting them to ICE to complying with immigration detainers—where a jail will hold an individual for up to 48 hours beyond their scheduled release date so that ICE can take them into custody. "County governments that operate jails are not required to honor detainer requests under federal regulations," the BPC report notes.

Other formal agreements include 287(g) agreements, which delegate many of ICE's powers to local law enforcement. Under the agreement, local jurisdictions receive money to pay for the training of officials that will allow them to legally inquire into a person's immigration status, detain individuals beyond the time they would be held in local custody, and issue Notice to Appear documents to begin deportation proceedings. More than 75 jurisdictions have entered into 287(g) agreements, and almost half of those joined under President Trump's revised program. In 2017, 287(g) agreements led to the deportation of some 6,000 illegal immigrants.

BPC studied five metropolitan areas—Atlanta, Austin, Charlotte, Denver, and Los Angeles—and only Charlotte's county sheriff has a 287(g) agreement. Ramon points out that the Fulton County Sheriff's Office, which oversees jails in Atlanta, had previously participated in the program but did not join Trump's revised agreement because they could not justify participation in the program.

"They did not interact with enough undocumented immigrants, and said that it was impractical," Ramon notes. However, six other counties in Georgia recently joined the 287(g) program.

At the beginning of this year, ICE announced a new program, known as a Basic Ordering Agreement (BOA), which gives sheriff's departments $50 and an arrest warrant to detain an immigrant for 48 hours after he or she should have been released. BOAs allow participants to circumvent legal issues and liabilities that have cropped up with counties involved with 287(g). The act of holding individuals past when they should be released violates the Constitution, immigrant advocates argue, so local jails that hold immigrants past a normal amount of time can be subject to litigation—which is often successful. Since a BOA is an agreement rather than a contract, it allows participating counties to detain immigrants without fear of liability. So far, 17 sheriff's offices in Florida participate in the program, and that number is expected to increase.

Ramon points out that finances can play a part in whether cities are immigrant-friendly. Incentives such as the $50 BOA fee and 287(g) grants and reimbursements for housing immigrants may entice local law enforcement, he says. And, in a broader scope, allowing privately run ICE facilities to operate in an area can bring significant financial benefits.

"As the debate about family detention and separation is ongoing and cities and counties are thinking about whether they want these facilities in their area, one of the arguments is that these facilities also bring in jobs," Ramon notes. "There is that component of additional financial revenue or jobs being created through private facilities. It's just something else people are considering at the moment."

County sheriff departments' actions go a long way in defining a city's status as immigrant-friendly. Mecklenburg County Sheriff's Office, for example, has solidified Charlotte's standing as hard on illegal immigration, despite the city's attempt to pass sanctuary city policies a few years ago.

And in Austin, the Travis County Sheriff's Office has set an example by completely cutting ties with ICE and permitting its officers to reject requests to detain individuals based on their immigration status.

Other sheriff's offices around the country fall in the middle, where some such as Denver will honor detainer requests but won't hold immigrants past their release periods. Other jurisdictions like Los Angeles allow ICE into jails despite a citywide push to end cooperation with the agency.

"The very term 'sanctuary cities' belies the fact that there are many law enforcement agencies that may operate within cities, and that the police can also operate at county or state levels," the BPC report states. "Policy makers should carefully anal​yze the practices of different levels of law enforcement across each state to develop policies based on a better understanding of cooperation between ICE and local law enforcement agencies."