Originally published by The New York Times
The battles between so-called sanctuary cities and the Trump administration are increasingly moving to state courts, where lawyers for immigrants have started to convince judges that state laws prohibit local law enforcement from cooperating with federal immigration agents.
The lawyers said they were turning to more liberal state courts to challenge the Trump administration’s policies in part because they believed that they would be less likely to succeed in a federal judiciary that is growing more conservative — and might ultimately lose in a Supreme Court with two appointees of President Trump.
Lawyers have also been encouraged by a series of recent successes in state law cases, which they say represent a long overdue reconciling between a deportation system that relies on local law enforcement and the state laws that determine the authority of local law enforcement.
Last month, New York became the second state in which an appellate state court ruled that local law enforcement officers could not detain immigrants for Immigration and Customs Enforcement, which then typically puts them into the deportation system.
The ruling follows a similar decision in the highest court of Massachusetts and lower courts in Colorado and Minnesota, all of which have prohibited local law enforcement officers from complying with so-called detainers, the requests from ICE for those officers to hold immigrants.
The immigration agency typically asks local jails and local police forces to detain noncitizens who have been arrested, often on less serious charges, and will eventually be released.
The four state courts ruled that if law enforcement officers detained immigrants on behalf of ICE, that was considered a new arrest, which they did not have the authority to make under their respective state laws.
But unlike the courts in previous decisions, New York’s three-judge appellate court was the first to meticulously review and reject of each of the federal government’s claims in its final opinion. As a result, lawyers across the country now view the opinion itself like a blueprint for crafting litigation in their own states and consider the lawyers who brought the case battle-tested veterans whose legal strategies they can employ.
Though a handful of states like Texas, Mississippi, North Carolina and Alabama have passed laws banning sanctuary jurisdictions, where state legislators have not specifically targeted sanctuaries, advocates believe state laws and constitutions will generally favor the authority of the state to determine how its local law enforcement interacts with federal immigration authorities.
“I expect that attorneys will be relying more and more on state law and asking state courts to step up and assume a role as the first-line defenders of civil liberties,” said Mark Silverstein, an American Civil Liberties Union lawyer in Colorado who litigated a state law case against detainers.
Despite President Trump’s conservative imprint across the federal judiciary, state courts retain the independence to protect civil liberties under their state constitutions, Mr. Silverstein added.
Sanctuary jurisdictions restrict cooperation between local law enforcement and federal immigration authorities by denying ICE access to jails or not complying with ICE’s detainer requests. Lawyers for immigrants have successfully defended these sanctuary cities’ and states’ sovereignty in federal courts since the early years of the Obama administration, and there are now hundreds of such jurisdictions across the country.
For the Trump administration, these jurisdictions’ ability to sever the ties between local law enforcement and federal immigration enforcement will determine whether or not Mr. Trump can achieve his immigration agenda within the United States.
Though Mr. Trump has sharply widened the pool of immigrants that ICE can deport, to actually locate them ICE relies on both information from local law enforcement about when they happen to arrest such immigrants and their cooperation in detaining those immigrants for ICE.
And because ICE cannot easily locate immigrants they deem deportable otherwise, when the police in sanctuary jurisdictions do not cooperate, it not only makes ICE’s work harder — it dramatically affects the number of immigrants deported.
“Our immigration machinery is almost completely intertwined with the criminal justice system,” which is a state and local phenomenon, said Muzaffar Chisti, the director of the Migration Policy Institute’s office at New York University School of Law.
“That’s why the Trump administration has been so offended by sanctuary jurisdictions,” Mr. Chisti said. “But that’s the reality of federalism.”
Since assuming office, President Trump has retaliated against sanctuary jurisdictions, publicly shaming them for restricting cooperation between local law enforcement and ICE, and threatening their federal funding in an executive order. That order was followed by the Department of Justice creating new conditions on federal funding grants that support local law enforcement.
But numerous federal court decisions in recent months have ruled that the Trump administration cannot withhold millions in funding from those jurisdictions without violating federal law.
For conservative opponents to sanctuary jurisdictions, the sanctuary decisions from state courts are seen as further fragmenting how immigration enforcement is implemented across the country despite immigration being a matter of national policy.
“What we will end up with is a patchwork of state rulings,” said Jessica Vaughan, director of Policy Studies at the Center for Immigration Studies, a Washington-based think tank that favors significant reductions in immigration.
“But immigration law is federal law where federal courts and Congress have jurisdiction,” she said, suggesting that because immigration enforcement is a federal matter, cases related to it should be tried strictly in federal courts.
The New York case involved Susai Francis, an Indian national living on Long Island, who overstayed his visa in the 1990s. In June 2017, he was arrested in Nassau County for driving under the influence. After being transferred to Suffolk County to complete a different proceeding involving a criminal charge, he pleaded guilty to disorderly conduct and was sentenced to time served.
But Suffolk County police did not allow Mr. Francis to leave court. Instead, they rearrested him at the request of ICE and held him for nearly two days before ICE picked him up. He is currently in ICE detention in New Jersey.
Mr. Francis’s story became just another in a litany of cautionary tales shared in America’s immigrant communities under the Trump administration. All start with minor interactions with police: the farmworker driving without a license, the teenager who jumped a turnstile, or the wife who called the cops when she was the victim of domestic abuse. All end the same way too: those people arrested by local police, handed over to ICE and ultimately, deported.
But even where law enforcement officers do not cooperate with ICE, the tools left at ICE’s disposal to locate unauthorized immigrants have negative consequences of their own.
Rachael Yong Yow, a Public Affairs Officer for ICE, wrote in a statement that when cities do not comply with detainer requests, “ICE has no choice” but to conduct “at-large arrests in local neighborhoods and at work sites, which will inevitably result in additional collateral arrests” when ICE officers encounter unauthorized immigrants with no criminal histories.
In immigrant communities, the fear of such raids deeply impacts peoples’ everyday lives. Basic activities — leaving your home to do errands, going to work to earn money for your family or opening the door if a stranger knocks — can put you at risk of being deported.
Where the widespread use of detainers erodes immigrants’ trust in local law enforcement, without detainers, ICE raids erode immigrant communities’ sense of security.
The environments created by both extremes “weakens public safety for everyone in the U.S.,” said John Sandweg, an acting director of ICE in the Obama administration. There needs to be “some level of cooperation that works between sanctuary cities and ICE, otherwise nobody wins.”