Trump signed an executive order last week reinstating a Bush-era deportation policy, Secure Communities, which effectively outlaws sanctuary cities, threatening to defund any jurisdictions that do not cooperate with Immigration and Customs Enforcement, or ICE.
While the action has been temporarily eclipsed by Trump’s immigration ban, it is sure to lead to legal showdowns between liberal cities and the federal government in months to come, according to Randy Capps, Director of Research for US programs at Migration Policy Institute. “The early reports are that most sanctuary cities aren’t backing down,” says Capps.
The Secure Communities policy was developed and tested under President George W. Bush. The point of the policy—according to a memorandum issued by the Department of Homeland Security to ICE—is to increase cooperation between local law enforcement and federal immigration officials to improve community safety.
ICE is in charge of enforcing immigration law in the US, and can work with local law enforcement agencies by requiring police detain anyone that enters a local jail and is suspected to have violated immigration law. The Secure Communities policy established a framework for this process; it required local jails to run the fingerprints of everyone they book through an FBI database of known immigrants, then notify ICE of any matches. ICE can then implement a detainer request, asking the jail to hold the suspect for 48 hours while ICE investigates the suspect’s immigration status.
While Secure Communities was piloted successfully in a handful of jurisdictions under President Bush, many jurisdictions refused to cooperate with ICE when the program was nationally implemented in 2009.
“Jurisdictions started to reject detainer requests based on costs and legality,” says Capps. Such rejections earned those jurisdictions “sanctuary city” status, a title referencing US church practices of housing refugees in the 1980s. In addition to high expenses, some jurisdictions rejected detainer requests on the grounds that holding people for ICE violates people’s 4th amendment rights; detainer requests do not come with judge-issued warrants, which are required to hold someone in a US jail after they have posted bond or otherwise been deemed eligible for release. Others rejected requests based on claims that cooperating with ICE undermined their efforts to increase public safety.
A report published by the Police Foundation in 2009 warned that cooperation between ICE and local law enforcement could have chilling effects on immigrant cooperation with the police. Following up on this prediction, a 2012 study by researchers at the University of Chicago found that increased cooperation between local law enforcement and ICE under Secure Communities had, in fact, bred fear of the police in the Latino community, which exacerbated their mistrust of law enforcement authorities.
In the study, 45% of Latinos surveyed said they were less likely to voluntarily offer information about crimes to police, or to report a crime—regardless of their immigration status—due to fear that the police will ask them, their family, or people they know about their immigration status. Seventy percent of undocumented immigrants said they were less likely to contact law enforcement authorities if they were victims of a crime.
Aurora, Colo. police chief Nick Metz refuses to honor ICE requests on the grounds that doing so interferes with his department’s ability to do its job. He doubled down on his position of limiting cooperation with ICE in the name of public safety after Trump’s election in November. “Our policy is not based on politics or personal philosophy. It is based on public safety. It is our goal to ensure that all individuals within Aurora feel safe in reporting emergencies and working closely with the APD to ensure our city remains a safe place for all,” Metz said.
Deportations reached a record high in 2013, drawing ire from immigration advocates who pointed out that the new policy was not targeting the dangerous criminals it purported to. Instead, in both years after Secure Communities was implemented, more than half of deportations conducted by ICE were of immigrants who had never been convicted of a crime.
At this point, states began passing their own bills outlawing cooperation with ICE. Connecticut led the charge, passing an act in May 2013, which prohibited local law enforcement from detaining individuals on the basis of ICE detainers after they become eligible for custody release, unless the individual had been convicted of specified crimes. California followed suit, passing a similar bill in October 2013.
Under mounting pressure from lawmakers and pro-immigration advocates, Obama pledged to review and reform the US immigration system. In a May 2014 speech, Obama promised to focus on “Felons, not families. Criminals, not children. Gang members, not a mom who’s working hard to provide for her kids.”
“We’ll prioritize,” he said. “just like law enforcement does every day.”
This promise resulted in the end of Secure Communities and the creation of a new policy regarding local law enforcement’s cooperation with ICE. Obama’s new policy, the Priority Enforcement Program, or PEP, limited ICE’s ability to put detainer requests on inmates, unless they had been charged with violent crimes.“Secure Communities was a top-down, one size fits all approach,” says Capps. “PEP was an attempt to correct that and increase cooperation between federal and local enforcement.”
Under PEP, most sanctuary city jurisdictions cooperated with ICE, unless they were dealing with immigrants charged with minor crimes—thus the switch to PEP restored these sanctuary cities’ alignment with federal law. “Almost all of the jurisdictions that had refused to cooperate fully under Secure Communities were back on board by the end of the Obama administration,” Capps said.
Deportations fell by almost half in 2015 (after the implementation of PEP) with 90% of all deportations occurring at the border. Over half of these deportations were of immigrants who had been convicted of a crime.
The executive order Trump signed last week reinstates Secure Communities, with the threat of withholding federal funding to jurisdictions that refuse to cooperate.
So far, Miami-Dade, which once resisted cooperation with ICE, has surrendered to Trump’s order. Meanwhile, Travis County Sheriff Sally Hernandez, whose jurisdiction includes Austin, Texas, has doubled down on her promise to only honor detainers issued by ICE on immigrants charged with violent crimes, despite Texas Governor Greg Abbott’s controversial decision to withhold state grant money from the county because of it.
As for the legality of Trump’s threat to withdraw funding from “sanctuary jurisdictions,” Capps says, “it will be up to the courts to decide.”