“Sanctuary” Jurisdictions: Policy Overview

“Sanctuary” Jurisdictions: Policy Overview

February 21, 2020
“Sanctuary” Jurisdictions: Policy Overview
Overview
How numerous are they?
Jurisdictions with “sanctuary” policies have been
In part because there is no agreed-upon classification of
controversial for decades, highlighting a tension between
sanctuary jurisdictions, different entities enumerate these
federal agencies charged with immigration enforcement,
jurisdictions using different criteria. For instance, the
and states and localities (e.g., counties, cities) that limit
Center for Immigration Studies identifies 10 states and 172
their cooperation in this regard. The prominence of
localities with sanctuary policies (as of February 2020). The
immigration enforcement for the Trump Administration,
Immigrant Legal Resource Center, on the other hand, does
and the publicity surrounding certain crimes committed by
not currently enumerate jurisdictions, and instead presents
some non-U.S. nationals (in statute, “aliens”), particularly
county-level involvement with ICE as a continuum. An
those without legal immigration status, have reignited
exact count of sanctuary jurisdictions also remains
debates over appropriate levels of immigration enforcement
imprecise because jurisdictions regularly create, change, or
within the United States. In 2017, President Trump issued
eliminate such policies.
Executive Order 13768 (EO), which included provisions
that aim to deter certain “sanctuary” policies and promote
How did they emerge?
cooperation with federal immigration enforcement
agencies.
In the past decade, sanctuary jurisdictions have largely
emerged as a response to efforts by DHS to foster federal-
state-local cooperation on immigration enforcement. In
Who handles immigration enforcement?
2008, DHS created “Secure Communities,” an information-
The Department of Homeland Security (DHS) is the
sharing program between the Department of Justice (DOJ)
primary federal agency responsible for immigration
and DHS that uses biometric data (i.e., fingerprints) to
enforcement. Within DHS, Customs and Border Protection
screen for removable aliens who have been booked into
(CBP) primarily handles immigration enforcement at U.S.
jails. Initiated in a dozen jurisdictions, Secure Communities
borders and ports of entry, and Immigration and Customs
currently covers all U.S. state and local law enforcement
Enforcement (ICE) handles immigration enforcement
jurisdictions. The expansion of Secure Communities
within the U.S. interior. Some state and local law
contributed substantially to increased immigration
enforcement agencies (LEAs) may choose to assist ICE by
enforcement and greater numbers of alien removals during
identifying and temporarily detaining removable aliens so
the past decade, prompting a backlash in some states and
that ICE may take them into custody. Such cooperation
localities, particularly those with large foreign-born
benefits ICE’s mission by acting as a “force multiplier” that
populations.
extends the agency’s reach from the roughly 5,300
deportation officers in its Enforcement and Removal
Jurisdictions have enacted sanctuary policies for many
Operations (ERO) division to LEAs throughout the United
reasons. Some object to ICE’s removal of aliens who, apart
States.
from either entering and/or remaining in the United States
unlawfully, have relatively minor or no criminal records.
What are sanctuary jurisdictions?
Others are concerned about family separation—sometimes
Although some states or municipalities expressly self-
affecting U.S. citizen children—resulting from removal.
identify as “sanctuary” jurisdictions, the term is not defined
States and localities may not necessarily be motivated by
in statute. While policymakers and observers disagree as to
disagreement with federal policies. Some jurisdictions that
the range of measures that constitute “sanctuary policies,”
establish sanctuary policies reportedly are concerned that
two categories of measures have received particular
complying with ICE requests to detain individuals might
attention from the Trump Administration:
subject them to legal liability. Others, concerned about
costs, object to using local resources for immigration
1. restricting the sharing of information
enforcement, which they consider a federal responsibility.
about aliens with immigration authorities;
and
What are some key legal issues?
2. barring LEAs from complying with ICE
The conflict between federal immigration objectives and
requests to notify immigration authorities
state laws and policies has arisen when a state or locality
when an alien identified for removal is to
prohibits information sharing with federal immigration
be released from LEA custody and, in
authorities, raising anti-commandeering and other
some cases, temporarily hold that alien
federalism and preemption concerns. For further discussion,
beyond the scheduled date of release so
see CRS Legal Sidebar LSB10386, Immigration
that he or she can be taken into federal
Enforcement & the Anti-Commandeering Doctrine: Recent
custody.
Litigation on State Information-Sharing Restrictions, by
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“Sanctuary” Jurisdictions: Policy Overview
Kelsey Y. Santamaria. Additionally, states and localities
through information sharing and detention. Critics posit that
have challenged the use of “immigration detainers,” which
cooperation with ICE permits ICE agents to take custody of
ICE uses to take custody of aliens who are in the criminal
such individuals efficiently in low-risk settings (e.g., jails,
custody of state and local LEAs. Some courts have ruled
prisons). ICE maintains that, absent such cooperation, its
that ICE’s practice of issuing detainers violates the Fourth
agents must use multi-person teams to locate and remove
Amendment. For further discussion, see CRS Legal Sidebar
released individuals under more hazardous circumstances.
LSB10375, Immigration Detainers: Background and
Other critics contend that sanctuary jurisdictions encourage
Recent Legal Developments, by Hillel R. Smith.
aliens to illegally enter or remain in the United States by
protecting them from immigration enforcement.
How has the Trump Administration responded?
The President’s 2017 EO aims to withhold certain streams
What do defenders of sanctuary laws and
of federal funding from states and localities that do not
policies argue?
comply with 8 U.S.C. §1373. That provision prohibits
Defenders maintain that states and localities should not use
federal, state, and local government entities from restricting
their resources for federal immigration enforcement efforts,
the flow of information to or from DHS regarding an
and particularly on foreign residents who have relatively
individual’s citizenship or immigration status. The EO
minor or no criminal records, and whose removal in some
grants DHS authority to designate any state or locality as a
cases leads to family separation. They contend that state
sanctuary jurisdiction and take “appropriate enforcement
and local LEA cooperation with ICE confounds the
action” against a jurisdiction that violates 8 U.S.C. §1373 or
perceived relationship between criminal law enforcement
otherwise limits federal immigration enforcement. The EO
and immigration enforcement, inhibiting crime victims and
states that sanctuary jurisdictions are ineligible to receive
potential witnesses from reporting crimes for fear of
federal grants, which are not specified in the EO. Then-
possible immigration-related consequences. Defenders also
Attorney General Jeff Sessions subsequently indicated that
cite legal and constitutional arguments to maintain that
non-compliant jurisdictions would face restrictions on funds
sanctuary policies are appropriate.
from the Edward Byrne Memorial Justice Assistance Grant
(JAG) program. JAG grants support LEAs, and total
What has Congress proposed?
roughly $450 million annually. For more information, see
CRS InFocus CRS In Focus IF10691, The Edward Byrne
In the 116th Congress, legislation has been introduced—
Memorial Justice Assistance Grant (JAG) Program, by
such as the No Federal Funding to Benefit Sanctuary Cities
Nathan James.
Act (H.R. 1885) and the Ending Sanctuary Cities Act of
2019 (H.R. 516)—that would prohibit sanctuary
Several states and localities have brought lawsuits,
jurisdictions (defined as either violating 8 U.S.C. §1373 or
challenging the withholding of certain federal funds. For
not complying with ICE detention or notification requests)
more information, see CRS Legal Sidebar LSB10386,
from receiving all federal financial assistance. Similarly,
Immigration Enforcement & the Anti-Commandeering
the No Funding for Sanctuary Campuses Act (H.R. 768)
Doctrine: Recent Litigation on State Information-Sharing
would prohibit federal funding for institutions of higher
Restrictions, by Kelsey Y. Santamaria. For background
learning that have sanctuary policies.
information, also see CRS Report R44789, Sanctuary
Jurisdictions and Select Federal Grant Funding Issues: In
Some bills, such as H.R. 1885, contain provisions allowing
Brief, by Natalie Keegan.
states and localities to comply with detainers while
sheltering them from legal liability for doing so. The Justice
On February 5, 2020, Acting DHS Secretary Chad Wolf
for Victims of Sanctuary Cities Act of 2019 (H.R. 3964/S.
announced a policy blocking New York residents from
2059) would provide a civil remedy for individuals harmed
enrolling or re-enrolling in federal expedited travel
by sanctuary jurisdiction policies. Other legislation, such as
programs after New York passed a state law known as the
the No Sanctuary for Criminals Act of 2019 (H.R. 1928)
“Green Light Law.” That law permits unlawfully present
and the Immigration Detainer Enforcement Act of 2019
aliens to secure a driver’s license. Of particular relevance to
(H.R. 4948/S. 2739), would expand ICE’s authority to issue
DHS, the New York law prohibits the sharing of state
detainers.
Department of Motor Vehicle records with DHS. DOJ has
also filed lawsuits against California, New Jersey, and a
In contrast, bills that defend sanctuary policies, such as the
Washington-state county to challenge sanctuary laws and
End Mass Deportation Act (S. 1591), would rescind EO
policies that limit cooperation with immigration authorities.
13768. The PROTECT Immigration Act (H.R. 2729/S.
1440) would limit ICE’s authority to issue detainers.
What do critics of sanctuary laws and
policies argue?
William A. Kandel, Coordinator, Analyst in Immigration
Critics contend that sanctuary laws and policies impede
Policy
immigration enforcement and create public safety hazards.
Abigail F. Kolker, Analyst in Immigration Policy
They cite, among other actions, releasing convicted
criminals into U.S. communities rather than facilitating
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their custody transfer to federal immigration authorities

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“Sanctuary” Jurisdictions: Policy Overview

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