Sanctuary policies first emerged in the 1980s as a response to the Reagan administration’s denial of asylum claims for refugees from Guatemala and El Salvador. In response to a growing refugee crisis, and the fear that many of those who were being denied asylum faced persecution and death in their country of origin, churches and synagogues began offering “sanctuary” to refugees from these countries, based on ancient religious tradition. The Sanctuary Movement, as it came to be known, led a number of cities to adopt city resolutions in solidarity beginning in 1983, marking the birth of the sanctuary city. These policies forbade local officials from inquiring into the immigration status of residents and often criticized the Reagan administration’s refugee policies. Today, the scope of sanctuary policies has expanded, and they may not only bar local officials from collecting information on immigration status, but also include a refusal to honor immigration detainers from Immigration and Customs Enforcement (ICE), which are issued by ICE to request that local authorities hold immigrants until they can be taken into federal custody for deportation proceedings. Most sanctuary policies in the United States were passed during three periods. The first ran from 1983 to 1989, with the policies passed in response to the Central American refugee crisis. The September 11 attacks and the subsequent immigration crackdown and passage of policies like Secure Communities would lead to more policies being passed between 2001 and 2012. Lastly, the presidency of Donald Trump led to more declarations based on the administration’s crackdown on undocumented immigration. At the same time, an anti-sanctuary movement materialized for the first time at both the federal and state level that sought to either prevent further declarations or to attach penalties to sanctuary policies. One example is Texas’s SB 4, which in 2017 introduced state-wide bans on these policies and allows for fines and removal from office for officials who do not comply with federal immigration policy. The Trump administration itself sought to deny federal grants to sanctuary jurisdictions, something that had been floated in the past by Republican presidential candidates like Fred Thompson but had never been attempted by previous administrations. The rhetoric of the Trump administration on sanctuary policies, as well as the media coverage of the 2015 accidental shooting of Kathryn Steinle in San Francisco by an undocumented immigrant led to more coverage of the topic than at any other point in history. This in turn led to increased scholarship, which continues, as researchers look to connect the Sanctuary Movement to modern sanctuary cities; to examine the effects of media framing of these policies; to analyze the causes of public support or opposition; to explore the legality of sanctuary and anti-sanctuary legislation; and to document the effects these policies have on the incorporation of immigrant communities and crime rates in sanctuary cities.
Federalism, Law, and Sanctuary Policies
While immigration policy in the United States is the sole jurisdiction of the federal government, this ignores the complicated nature of immigration policy in the United States, with a patchwork of cooperation and resistance to federal policy at the state, county, and local level. Some localities have sought to expand the power of states vis-a-vis the federal government by enacting policies that are more restrictive, while others have expanded the cooperation and involvement of local officials in enforcement since the 9/11 attacks. Gulasekaram and Ramakrishnan 2015 provides an overview of the shifting relationship between state/local policies and the federal government, while Armacost 2016 specifically examines the role of sanctuary policies in the broader debate around immigration enforcement. Elias 2013 analyzes the growth of immigrant-inclusionary practices, including sanctuary policies, in the wake of two Supreme Court decisions: Arizona v. United States and Chamber of Commerce v. Whiting. While questions of federalism are important, sanctuary cities also exist as a challenge to the increasing criminalization of undocumented immigration over the last few decades, something that Ridgley 2008, one of the earliest papers on sanctuary cities, illustrates. Cities have a number of tools at their disposal to resist participation in federal immigration enforcement. The simplest solution is to not allow local officials to collect immigration-related information, but some go farther and decline detainer requests from Immigration and Customs Enforcement (ICE) or adopt other tactics, as documented in Lasch, et al. 2018. In these cases, the tools available to the federal government to force cooperation are extremely limited, as Chen 2015 reveals. Increasingly, there are attempts to prevent local policies through state anti-sanctuary policies, or other policies mandating the cooperation of local officials, something that Gulasekaram, et al. 2019 and Riverstone-Newell 2017 both examine. As Motomura 2011 illustrates, this decision at the local level to arrest individuals on immigration-related crimes can be the discretion that matters in terms of deportation, since most will be deported if they are handed over to federal officials. It is thus important to consider what makes participation in immigration enforcement by local law enforcement more or less likely, which Lewis, et al. 2012 does by looking at a national survey of police chiefs. The authors find that city policies, such as sanctuary, and having a Latinx police chief both make participation in enforcement less likely.
Armacost, Barbara E. “Sanctuary Laws: The New Immigration Federalism.” Michigan State Law Review 35.1 (2016): 1197–1265.
Examines sanctuary policies and resistance to having increased duties for immigration enforcement delegated to local law enforcement. Armacost argues that sanctuary policies are a new form of immigration federalism that highlight some of the problems of federal immigration policy.
Chen, Ming H. “Trust in Enforcement: State Noncooperation and Sanctuary Cities after Secure Communities.” Chicago-Kent Law Review 91.1 (2015): 13–57.
Examines resistance to Secure Communities through sanctuary policies that decline detainer requests from Immigration and Customs Enforcement (ICE) and the impact this could have on the Priority Enforcement Program (PEP) adopted under the Obama administration to prioritize deportation of criminal immigrants.
Elias, Stella Burch. “The New Immigration Federalism.” Ohio State Law Journal 74.5 (2013): 703–752.
Details the increasing emphasis on the role of states and localities in immigrant-inclusionary policies that in some cases challenge federal immigration policies in the context of the Arizona v. United States and Chamber of Commerce v. Whiting Supreme Court decisions. Included in this examination are state and local sanctuary policies and the legal basis for these policies in light of these two court decisions.
Gulasekaram, Pratheepan, and S. Karthick Ramakrishnan. The New Immigration Federalism. New York: Cambridge University Press, 2015.
This volume provides an excellent overview of immigration federalism, though it is primarily concerned with state and local policies that are more restrictive than federal immigration policy, such as Arizona’s SB 1070.
Gulasekaram, Pratheepan, Rick Su, and Rose Cuison Villazor. “Anti-Sanctuary and Immigration Localism.” Columbia Law Review 119.3 (2019): 837–894.
This article importantly examines the increase in state-level anti-sanctuary laws that mandate local participation, oftentimes attaching penalties to noncompliance with federal immigration policy. In the case of state-level policies, sanctuary jurisdictions cannot rely upon federalism protections that thus far have been successful in stymying federal attempts to penalize sanctuary policies. The authors therefore consider what is likely to be one of the main arenas for the sanctuary conflict going forward.
Lasch, Christopher N., R. Linus Chan, Ingrid V. Eagly, et al. “Understanding Sanctuary Cities.” Boston College Law Review 59.5 (2018): 1703–1774.
Situates a discussion of sanctuary policies in the “crimmigation” literature, which examines the increasing parallels between immigration and crime policy, particularly. Identifies five different types of initiatives adopted by localities that would fall under the broad definition of sanctuary policies, as well as the rationales for these initiatives.
Lewis, Paul G., Doris Marie Provine, Monica W. Varsanyi, and Scott H. Decker. “Why Do (Some) City Police Departments Enforce Federal immigration Law? Political, Demographic, and Organizational Influences on Local Choices.” Journal of Public Administration Research and Theory 23.1 (2012): 1–25.
This paper examines what affects city-level immigration enforcement by drawing on a national survey of police chiefs. The authors find that city-level commitments to support the city’s immigrant community, including sanctuary policies, as well as having a Latinx police chief, led to less-intensive enforcement by local authorities.
Motomura, Hiroshi. “The Discretion That Matters: Federal Immigration Enforcement, State and Local Arrests, and the Civil-Criminal Line.” Immigration and Nationality Law Review 32 (2011): 167–206.
Analyzes prosecutorial discretion in immigration and criminal law at both the local and federal level. Motomura argues that local arrests for criminal violations of federal immigration law often mean that these individuals will be funneled into removal proceedings. While not explicitly about sanctuary policies, this gives context to the reasons some localities choose to implement them by showing the importance of local discretion.
Ridgley, Jennifer. “Cities of Refuge: Immigration Enforcement, Police, and the Insurgent Genealogies of Citizenship in US Sanctuary Cities.” Urban Geography 29.1 (2008): 53–77.
One of the earliest pieces on sanctuary policies in the 2000s, this article examines the role these policies play in challenging the federal criminalization of undocumented immigration and the different perspective on political membership these policies promote.
Riverstone-Newell, Lori. “The Rise of State Preemption Laws in Response to Local Policy Innovation.” Publius: The Journal of Federalism 47.3 (2017): 403–425.
Examines the introduction of state preemption laws to prevent the introduction of local sanctuary policies. Also considers preemption laws targeting local environmental and LGBTQ policies.
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