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| The congregation at University Presbyterian Church in Phoenix, Arizona offers sanctuary to a young man, September 2014 (From sanctuarynotdeportation.org) |
Calm and Unite,
Don’t Agitate and Incite
By Ricardo Inzunza
The “Sanctuary Movement,” a network of religious congregations that started with a Presbyterian church and a Quaker meeting in Tucson, Arizona, sprang up in the 1980s. The Christian values of those two congregations were so deeply offended by American refugee policy that they openly defied the former Immigration and Naturalization Service by publicly sponsoring and supporting non-immigrated Salvadoran and Guatemalan refugee families.
By “non-immigrated” I refer to individuals living here permanently without an immigration status. The Department of Homeland Security defines an immigrant as a person lawfully admitted to reside here permanently. The subtle, but clear government implication is that if you have not been “lawfully” accorded immigrant status you are not an immigrant yet. However, the President, Congress, and the immigration elite make almost daily references to the evils of “illegal immigrants” and “illegal immigration.”
I reject these negative terms. Not only are they incorrect and pejorative but, in my opinion, they only serve to keep average Americans agitated, divided and confused about immigration. Here is how I see it: 85% of the folks without an immigration status have lived here for more than 15 years. Without a doubt, they are residents of the United States and functioning members of their communities. Therefore, the more precise term of reference is non-immigrated resident. This defines the population clearly and it’s neutral in value shading.
As Deputy Commissioner of the former Immigration and Naturalization Service under President George H. W. Bush, my office was the central source for the development, implementation and oversight of all immigration service policies and practices, including the “Sanctuary Movement.”
The Sanctuary Movement developed a strong Christian following. Over 1,000 local Christian and Jewish congregations, several major Protestant denominations, the Conservative and Reform Jewish associations, and several Catholic orders all endorsed the sanctuary concept. For some years, the coalition openly challenged the Republican administration, but it had lain dormant for decades.
Within recent years, however, places of worship, religious organizations, and even academic institutions are offering sanctuary throughout the country. One of many such efforst is depicted in the accompanying illustration.
Today, whether or not they are referred to as “Sanctuary Cities,” thousands of cities and counties throughout America have local policies barring their agencies from expending local capital and resources on immigration enforcement. These are wise and lawful exercises of local authority. Local governments are protected by the nation’s legal and constitutional structure.
President Donald Trump’s “Sanctuary City” Executive Order, issued this past January, managed to re-open an old wound. So much so that California lawmakers passed a “Sanctuary State” bill on Saturday, September 16, declaring the entire state as a “safe haven” for non-immigrated residents.
This is quite remarkable since there is no official definition for the term “Sanctuary City” in immigration policy or law; therefore, it’s impossible to know what constitutes a “Sanctuary State.” What we do know is that the President leads a group of mostly Republicans opposed to something called “Sanctuary Cities.” However, their line of reasoning seems a bit fuzzy. Offering to clamp down on something called a “Sanctuary City” as a panacea for our immigration and national security troubles is a bit hard to swallow.
Clearly, this is a divisive and complex issue that will be settled by the courts. Playing the shame and blame game doesn’t help matters.
Intended to crack down on “Sanctuary Cities,” the executive order argued that these communities run afoul of Section 1373 of Title 8 of the US Code, but the order did not provide a definition for the term “Sanctuary City.”
In April, a federal judge, responding to a lawsuit brought by the City of San Francisco, disagreed with Trump. He issued a preliminary injunction blocking the Trump administration from enforcing Section 9 of the Executive Order. Section 9 empowered the Secretary of Homeland Security to create his own definition of a “Sanctuary City” and to then apply it to cities he is trying to coerce into complying with the Executive Order.
The President’s Executive Order directed that grant money provided to jurisdictions the Department of Justice (DOJ) has unilaterally dubbed “Sanctuary Cities” be retroactively pulled back and that they be prohibited from receiving future federal funding for willfully refusing to comply with 8 USC § 1373. So what does 8 USC § 1373 require?
Generally speaking today, there are two types of entities that might run afoul of 8 USC § 1373. There are cities that develop rules restricting state and local governments from alerting federal authorities about people who may be in the country without an immigration status. This means, if you’re a city government employee and you believe a non-immigrated resident has fraudulently applied for a benefit program and you want to report that person to Immigration and Customs Enforcement (ICE), the government cannot forbid you from doing so without violating Section 1373.
Conversely, under Section 1373, the federal government cannot force any city or county government to report such a person’s information to ICE. Your boss can’t stop you from reporting non-immigrated residents to ICE and the government can’t force you to report non-immigrated residents to them. That’s the law.
There are also entities that enact policies which do not honor immigration detainers. The Justice Department also refers to them as “Sanctuary Cities.” Immigration detainers are tools used by ICE officials so they can be notified prior to release of individuals, in jails or prisons nationwide, which have been identified as potentially deportable. Immigration detainers are requests made by ICE; compliance with the requests is strictly voluntary. Law enforcement agencies have absolute discretion to decide which detainers, if any, to honor and under what circumstances.
Through 8 USC § 1373, Congress, not the Executive Branch, has the ability to influence the behavior of state and city immigration policies by setting limits on the use of federal grants. In this case, the Supreme Court has also weighed in by articulating a number of limitations to the conditions Congress, not the DOJ, can place on federal grants. President Trump’s Executive Order appears to violate at least three of these restrictions: (1) the conditions of grants must be unambiguous and cannot be imposed after funds have already been accepted; (2) there must be a nexus between the federal funds at issue and the federal program’s efforts to deport non-immigrated residents; and (3) the financial inducement cannot be coercive.
I don’t believe they can be stripped of federal grant money without due process and clear guidance from Congress.
Attorney General Jeff Sessions, just back from his trip to the “Presidential Woodshed,” is now clear-eyed, focused and determined to do the President’s bidding, even if it means having an indifferent relationship with the truth. As part of his atonement, he sent letters to cities the DOJ has dubbed “Sanctuary Cities,” telling them federal grant money will be pulled back unless they accede to DOJ’s wishes and notify immigration agents before releasing inmates suspected of possible immigration violations.Chicago quickly joined a growing list of cities that have filed suit against this measure.
Attorney General Sessions quickly hit back against Chicago saying: "They have demonstrated an open hostility to enforcing laws designed to protect law enforcement and reduce crime, and instead have adopted an official policy of protecting criminals who prey on their own residents." The Attorney General indicated the Trump administration is committed to the rule of law and to enforcing the laws established by Congress. But are they?
I know the Attorney General is still pouting from his Presidential tongue lashing, so instead of arguing from the facts, he is using the language of fear, hyperbole and deception as tools to muster public support for this ill-conceived notion.
Congress has exclusive authority over the nation’s immigration laws. If the Attorney General believes the law governing allocation and use of federal grants is exacerbating our immigration woes he should be looking to Congress for relief. He shouldn’t be trying to turn public sentiment against so-called “Sanctuary Cities” by browbeating and defaming them.
Personally, I don’t believe local law enforcement belongs in the immigration business so it makes me more than a little suspicious when the Attorney General sets out to vilify so-called “Sanctuary Cities” by trying to scare us into believing they hold the key to solving our immigration problems. Congress has wisely kept federal and local law enforcement separate when it comes to immigration control.
Here are some of the safeguards Congress has written into 8 USC § 1373:
· The federal government is precluded from coercing state or local governments to use their resources to enforce federal regulatory programs, such as immigration.
· Policies which limit or prohibit compliance with immigration detainers and requests for notice of release dates do not violate 8 USC § 1373.
· Immigration detainers are explicitly not mandatory. Electing not to respond to them is entirely within the discretion of local law enforcement.
Fear is notoriously contagious. Used skillfully by politicians looking to manipulate voters, it’s toxic and capable of driving a wedge between well-meaning citizens. Deliberately arousing public fear makes me wonder what this spectacle is doing to the ray of hope so many have always seen in America, the ray of hope so many pray will be expressed in our leadership.
More than ever, we need leadership that calms and unites, not leadership that agitates and incites.
Ricardo Inzunza, a native of San Diego, California, was posted in the Pentagon and the Departments of Energy and Justice in the Administration of President Ronald Reagan. He was appointed Deputy Commissioner of the former Immigration and Naturalization Service (INS) by President George H. W. Bush; his office was the central source for the development, implementation and oversight of all immigration service policies and practices, including the “Sanctuary Movement.” Now as CEO of RIA International, Ltd, Ricardo is often asked to serve as a business consultant to clients such as the World Bank and the Peoples Republic of China. He can be reached at 662-268-1115 (O), 202-664-3274 (M), or riatria@aol.com.