Sanctuary Cities May Point to Future of Immigration Enforcement, Says Professor Barbara Armacost

In Her Recent Paper, Armacost Suggests a ‘New Immigration Federalism’
Barbara Armacost

Barbara Armacost teaches civil rights litigation, criminal investigation, torts and First Amendment (religion clauses).

June 7, 2017

The sanctuary cities movement, motivated by President Donald Trump’s crackdown on illegal immigration, shouldn’t be viewed as a simple knee-jerk political reaction by state and local authorities to sweeping federal policy, a University of Virginia School of Law professor says.

In her recent paper, “‘Sanctuary’ Laws: The New Immigration Federalism,” Professor Barbara Armacost argues that the movement is rooted in legitimate local police concerns over how best to manage law enforcement in immigrant communities.

Armacost, an expert in criminal justice, civil rights and policing, said she expects sanctuary laws to play a significant role in reforming national immigration policy.

She explained why, and elaborated on the controversial topic of immigration federalism, in a recent interview about her paper.

What are “sanctuary laws” and why are they controversial?

So-called “sanctuary laws” are laws that direct state or local officials not to honor federal detainers or to honor them only under certain circumstances, such as when the suspected illegal immigrant has been convicted of a serious crime or when federal officials have “probable cause” for immigration enforcement. Detainers are documents that U.S. Immigration and Customs Enforcement uses to request other agencies take actions that would facilitate removal of illegal aliens, such as continuing to hold an individual or notifying ICE before releasing an individual. These laws are controversial because they seem designed to thwart federal immigration enforcement and shelter illegal immigrants from apprehension and detention. According to different accounts, between 350 and 500 state and local jurisdictions have enacted such laws.  

I say “so-called” sanctuary laws because, despite its widespread use in current immigration debates, this term is not an accurate description of the modern resistance movement. The concept of a sanctuary city has American historical roots in 1980s efforts by churches to hide and shelter immigrants from Central America who had fled their countries’ violent civil wars and entered the U.S. illegally across the Mexican border. The 1980s sanctuary movement was initiated by private citizens whose explicit goal was to thwart federal immigration enforcement and prevent immigrants’ deportation. By contrast, the current sanctuary movement is a principled legislative response by states and localities. It is designed not to obstruct immigration enforcement writ large, but to address certain pathologies of a system in which local policing and immigration enforcement have become destructively intertwined.  

Why have so many state and local authorities chosen to resist immigration policing?

To answer that question, it is important to understand why federal immigration officials have enlisted the help of state and local police in the first place. While federal immigration enforcement officials number only about 18,000, there are nearly 750,000 state and local police nationwide. In addition, police officers have informational advantages in identifying undocumented individuals. As they patrol the streets, enforce traffic laws, answer emergency calls and investigate crimes, police gain information about the identities and locations of individuals who might be in the country illegally. Proponents argue that getting police involved allows them to be a “force multiplier” for immigration enforcement. 

The problem with this rosy picture, however, is that it assumes state and local police can simply add immigration enforcement on to what they are already doing. Instead, many police leaders and agencies have come to believe that they cannot simply “add” immigration enforcement duties without fundamentally changing the nature of policing. 

For example, uniting immigration enforcement with policing creates incentives for police to use low-level criminal offences, such as minor traffic stops, as a pretext to stop and arrest “foreign-looking” individuals in order to check their immigration status. Of course, foreign-looking individuals are not necessarily illegal immigrants, and stopping people on such grounds leads to racial profiling. Moreover, focusing inordinate attention on minor offenders undermines public safety by diverting attention toward finding illegal aliens (without regard to dangerousness) rather than fighting crime.

Racial targeting based on minor offenses ultimately undermines the trust and cooperation of immigrant communities and makes ordinary policing more difficult. These criticisms are well-documented and widely shared by police and local officials. As a result, many police agencies have declined to participate in the 287(g) program or Secure Communities (now called Priority Enforcement Program, or PEP). 

You call the sanctuary movement “the new immigration federalism.” What is the “old” immigration federalism? 

The term immigration federalism — also called immigration policing — refers to the range of ways in which state and local officials assist in enforcing federal immigration law.  The source of authority for immigration policing includes state laws such as Arizona’s SB 1070 as well as federal programs such as the so-called “287(g) program” and Secure Communities.  The modern sanctuary movement — the new immigration federalism — evolved, in part, in opposition to immigration policing.

Why do you call state and local resistance to federal policy the “new immigration federalism”?

I use the term to make the point that immigration resistance and immigration policing are both exemplars of “federalism,” broadly defined to encompass all the various ways states and the federal government relate to each other in areas of plenary and overlapping power. The sanctuary movement is best seen as an alternative federalist response to shared issues involving immigrant communities. I call the sanctuary movement the “new” immigration federalism to distinguish immigration resistance from the enforcement regimes to which the term immigration federalism has generally been applied in the literature, and to avoid confusing current so-called “sanctuary laws” with the very different sanctuary movement of the 1980s.    

How could local resistance help shape federal immigration policy as a whole?

The local resistance movement — and related federal lawsuits — have already had effects on immigration policy by addressing some of the pathologies that motivated the rise of sanctuary laws. Federal officials now acknowledge that federal immigration detainers are requests, not demands, and ICE has made some efforts to satisfy Fourth Amendment (probable cause) requirements before requesting that suspected illegal immigrants be detained beyond their otherwise authorized detention. Secure Communities was terminated and replaced by PEP, at least in part to discourage police from using pretextual stops to feed minor offenders into the federal immigration system. Under PEP, federal officials are directed to enforce immigration law against illegal immigrants in state custody only if they have been convicted, not merely charged, and not to pursue aliens convicted of merely traffic offenses or minor misdemeanors. The Obama administration’s turn away from immigration enforcement targeting minor offenders and its promise to pursue dangerous criminal aliens addressed similar concerns. 

Unfortunately, the Trump administration appears to be turning back the clock, both by threatening to yank federal funds from jurisdictions deemed to be sanctuary cities and by renewed targeting of illegal immigrants who have committed only minor offenses or who have no criminal record at all. In addition, the Trump administration appears to be ramping up the 287(g) program, implicitly urging states and localities to reinvigorate old immigration policing models that gave rise to the pathologies I describe in this article.      

What are you working on next?

One of my next projects will return to earlier work on organizational culture in policing to address the effects of financial incentives (of the sort described in the investigation of the Ferguson Police Department) on police culture. I also intend to explore the issue of “time frames” in constitutional rules governing excessive force. I addressed this issue briefly in a recent article in the Harvard Business Review.    

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