President Donald Trump and his attorney general, Jeff Sessions, have repeatedly accused sanctuary jurisdictions of breaking the law by refusing to keep immigrants locked up at the request of federal immigration agents.
But this accusation ignores the fact that the detainer requests made by Immigration and Customs Enforcement (ICE) are voluntary. It also wrongfully interprets a federal immigration statute that does not pertain to the detention of immigrants, according to several interviews by Univision News with policy experts, as well as a review of legal precedent and official documents.
The Trump administration claims that sanctuary jurisdictions violate Section 1373 of the Immigration and Nationality Act, which prohibits them from hiding the citizenship or immigration status of any individual from the federal government.
But Section 1373 has not been found to apply to ICE detainer requests, and at least six courts have agreed that keeping immigrants detained based solely on ICE detainers may constitute a violation of their constitutional rights.
Officers in sanctuary jurisdictions have argued that they cannot keep individuals detained after they’ve posted bond or finished their sentences, unless ICE provides a judicial or criminal warrant. According to ABC News, a meeting last Thursday between government officials and police officers in Washington got testy when a senior Department of Homeland Security suggested jails could legally comply with detainers without a warrant. "Under what authority?," the cops demanded to know.
An ICE official told Univision News that detainers “serve as a legally-authorized request, upon which a law enforcement agency may rely, to continue to maintain custody of the alien for up to 48 hours so that ICE may assume custody for removal purposes.”
However, the official detainer form sent routinely by ICE to local jails —known as I-247D— is labeled as a "request for voluntary action."
Last week, the attorney general implied that jurisdictions that refuse to comply with ICE detainers would have to prove that their policies don't violate Section 1373 if they were to receive Justice Department grants. But a Justice Department official later declined to comment on whether this meant that applicants would also have to certify that they comply with voluntary ICE detainers.
"ICE detainer requests are not mandatory and they don’t have to be executed," said Juan Cartagena, president and general counsel of Latino Justice PRLDEF, an organization dedicated to protecting the civil rights of Latinos in the United States. "Sessions' conclusion that sanctuary policies are illegal doesn't make sense either. None of the courts have decided that. It’s quite the opposite."
An attempt by the Trump administration to force local jurisdictions to comply with voluntary ICE requests would violate the principle of state sovereignity mandated by the Tenth Amendment of the Constitution, Cartagena explained. And any jurisdiction that complies with detainers could be found to violate an individual's constitutional rights of due process and equal protection under the law, as well as against unreasonable seizures, he said.
'Not necessarily a 1373 violation'
In his speech, Sessions pointed to a report on sanctuary policies published a year ago by the Justice Department's Office of the Inspector General (OIG), which, according to Sessions, "found these policies also violate federal law."
However, the report —published in May by Inspector General Michael E. Horowitz— states that federal law does not require enforcement of ICE detainers, a point that the inspector general confirmed when he presented the document to Congress in September.
"(In the report), we noted that Section 1373 does not specifically address restrictions on cooperation with ICE detainer requests", Horowitz told the House Subcommittee on Immigration and Border Security. "We further noted that the Department of Homeland Security has made a legal determination that civil immigration detainers are voluntary in nature and that the ICE officials with whom we spoke told us that they are not enforceable against jurisdictions which do not comply."
The report concluded that the only way sanctuary policies could violate federal law would be if local officials refused to cooperate with ICE agents “in all respects,” and not just with detainer requests.
The Justice Department's OIG declined to comment on Sessions' interpretation of its report.
Jessica Vaughan, the director of policy studies at the Center for Immigration Studies (CIS), which favors lower immigration, says she opposes sanctuary policies. Vaughan has been keeping a list of hundreds of sanctuary jurisdictions since 2015 and believes “it shouldn't take a threat from the federal government” for these places to rethink their policies.
However, she disagrees with the idea that refusing an ICE detainer is a violation of federal law.
"If (sanctuary jurisdictions) are not limiting communication or information exchange in any way, then they may not be violating 1373, and probably would not be subject to loss of funding", she told Univision News in an email. "Similarly, if the only form of interfering is that they are not holding people on ICE detainers, that is not necessarily a 1373 violation."