Proponents of Arizona’s new immigration law, SB-1070, have a new talking point: they are now arguing that if the Department of Justice (DOJ) is going to legally challenge SB-1070, it should also go after “sanctuary city” policies as well. “Sanctuary city” is a right-wing derisive term used to describe cities that have adopted community policing policies that prevent police from asking about the immigration status of or detaining and arresting immigrants solely for being undocumented. On Fox News today, the architect of SB-1070, lawyer Kris Kobach, argued that “sanctuary cities” are “expressly forbidden” by Congress and that laws like SB-1070 are encouraged:
Sanctuary cities are expressly forbidden by Congress. [...] In contrast, what Arizona is doing is not prohibited by any specific statute. And indeed, it is invited by several statutes that recognize that a state can and should help the federal government make immigration arrests. So, it’s as if the attorneys and the Justice Department are completely ignoring what Congress said in 1996 when they passed that law prohibiting Sanctuary Cities. [...] This Obama administration Justice Department is saying, “We’re not so concerned about Sanctuary Cities. We’re going to ignore that portion of federal law and we’re gonna sue Arizona instead.” It is outrageous.
However, while Kobach accuses the DOJ of “completely ignoring” the laws, it appears Kobach is either overlooking or unfamiliar with “sanctuary city” policies and their relation to the 1996 law. The intent of “sanctuary city” laws are to encourage cooperation between local police and the immigrant community. If undocumented immigrants believe that police will detain and deport them solely for being in the U.S. illegally, they are less likely to report crimes and serve as witnesses. However, local police are still allowed to report foreign-born criminals to Immigration and Custom Enforcement (ICE). For example, the state of Maine passed a law which prevented State employees, including police, from inquiring about a person’s immigration status. However, there are certain exceptions written into the law and other similar resolutions including cases in which “investigating or prosecuting illegal activity other than mere status as an undocumented alien” and when police are “required by federal or state law or by court order or court rule to inquire about such person’s immigration status.” The law specifically states that “law enforcement officers shall continue to cooperate with federal authorities in investigating and apprehending aliens suspected of criminal activity.”
There are two 1996 laws, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) which apply directly to the third exception. AEDPA authorized state and local police to arrest and detain undocumented immigrants who have re-entered the U.S. after being deported and who have “previously been convicted of a felony in the United States.” IIRIRA authorized state and local police to enforce civil immigration laws when the Attorney General determines that there is an “actual or imminent mass influx of aliens arriving off the coast of the United States, or near a land border.” IIRIRA does ban policies that prohibit public employees from reporting immigration-related information, but it doesn’t address policies that prevent police from inquiring about an individual’s immigration status.
In fact, IIRIRA specifically established a partnership program for law enforcement agencies that want to work with federal immigration agents to pursue immigration arrests. Section 287(g) permits “designated officers to perform immigration law enforcement functions” after they sign an agreement with and receive training from ICE. If local police were actually required to enforce immigration law, establishing an optional program that permits them to would be redundant and unecessary.
At the end of his interview today, Kobach argued that he drafted SB-1070 so that it is a “mirror image” of federal law. However, unlike federal law, SB-1070 not only requires local law enforcement to enforce immigration laws, it also allows residents to sue police who they believe are not complying with the law’s provisions. Many police chiefs have come out against the law, pointing out that it will destroy their already tenuous relationship with the immigrant community and that they don’t have the resources or training to enforce it in the first place. And as Attorney General Holder pointed out, “[t]here is a big difference between a state or locality saying they are not going to use their resources to enforce a federal law, as so-called sanctuary cities have done, and a state passing its own immigration policy that actively interferes with federal law.”