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The Department of Homeland Security is trying to foster greater cooperation with local governments on immigration enforcement following the strained relations of the Trump years.
Homeland Security Secretary Alejandro Mayorkas is making a pitch to so-called sanctuary cities that the Biden administration is treating illegal immigrants differently than the Trump White House.
Mayorkas is asking those local governments, which restrict their police from working with federal authorities to catch and detain those in the nation illegally, to rethink their stance.
“I will be coming to you and asking you to reconsider your position of noncooperation and see how we can work together,” Mayorkas said at a gathering of the nation’s mayors in Washington last month. “The public’s safety, the public's well-being, for which we are all charged, is I think, at issue,” he added.
Many local officials, though, aren’t buying that Immigration and Customs Enforcement's treatment of undocumented people has changed all that much, even with Biden in office. And they are not willing to go along with Mayorkas’ plea.
“There exist long-standing concerns—even before the past administration—about ICE’s tactics and procedures to push non-U.S. citizens into the detention and deportation process," said a spokeswoman for Philadelphia Mayor Jim Kenney, who said the city will not change how it works with ICE.
Manuel Castro, commissioner of the New York City Mayor’s Office of Immigrant Affairs, said the city has no plans to change its policies either.
“All New Yorkers have the right to live in a city that is safe and inclusive, no matter their immigration status,” Castro said. “The city is proud of and will continue to stand by our laws and policies limiting our cooperation with Immigration and Customs Enforcement.”
A spokeswoman for Mayor Eric Adams, a retired city police officer who took office in January, agreed with Castro.
In Berkeley, California, Mayor Jesse Arreguín noted that the city has had sanctuary policies in place since 1971.
“That will not change regardless of who is in the White House, until such time that we have provided citizenship to everyone who immigrated to this country and create a clearer, easier path to citizenship,” the mayor said in a statement. “While I appreciate Secretary Mayorkas' commitment to handling the complex issue of immigration in a more humane way, we cannot risk removing our protections for a future administration to exploit.”
‘Not the Agency of the Past’
Mayorkas, in making his plea at a meeting of the U.S. Conference of Mayors, pointed to new guidelines he issued in September, indicating ICE will no longer target people solely for being in the nation illegally, if they are otherwise following the nation’s laws.
Instead, immigration agents will be required to make “an assessment of the individual” and to take into account the “totality of the facts and circumstances,” focusing on those posing a threat.
“What I want to communicate to you is that the Immigration and Customs Enforcement, ICE, the agency of today and what it is focused upon, and what it is doing, is not the agency of the past,” Mayorkas told the mayors.
“We are not engaged in indiscriminate enforcement, but we are focused on making our communities safe and allowing those who have been contributors to it and productive members of it, to allow them to continue in their contributions and their productivity,” he said.
In one respect, Mayorkas’ message does represent a change from the Trump administration, said Cody Wofsy, a staff attorney, with the American Civil Liberties Union’s Immigrants' Rights Project.
Former President Donald Trump, who made cracking down on illegal immigration a centerpiece of his campaign, sparred repeatedly during his term with local officials from jurisdictions that limited their cooperation with ICE.
He argued that local governments were required by federal law to work with federal law enforcement in catching illegal immigrants and to engage in controversial practices like holding suspects arrested for other offenses in jail longer than they would otherwise be detained until immigration agents could arrive.
Trump in an executive order shortly after taking office ordered sanctuary cities be barred from receiving federal criminal justice funds. “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States,” that order read. “These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.”
The order was eventually blocked by the courts. And, in April, Biden’s Attorney General, Merrick Garland, formally rescinded it.
Controversies over “sanctuary” jurisdictions are complicated by the fact that there is no exact legal definition for what the term means, even though it has become a political flashpoint.
‘Same Harmful Policies’
In urging sanctuary cities to change their policies, Mayorkas acknowledged local governments have the right to decide on their own how much they cooperate with the federal authorities, Wofsy said.
“The good thing is that Secretary Mayorkas is saying cities can make the decisions for themselves,” he said.
However, Wofsy and other immigration rights advocates say not enough has changed to make liberal cities feel like it’s OK to work with the immigration agents.
“Mayorkas’ motive seems to be to try to turn the page on the last four years as an anomaly,” said Cynthia Garcia, national campaigns manager for community protection with United We Dream, an advocacy group for “dreamers” who were brought illegally to the U.S. as children. “We’re seeing the same harmful policies.”
Similarly, Lena Graber, senior staff attorney with the Immigrant Legal Resource Center said the changes to ICE policy have not been sweeping in scope. “What Mayorkas is saying uses much softer language that we saw in the last few years,” she said. But Graber added: “The biggest change has been the rhetoric.”
Long Standing Debate
Hard line immigration groups, meanwhile, say that the Biden administration is headed in the wrong direction.
Jessica Vaughan, policy director for the Center for Immigration Studies, a group that pushes for tougher immigration laws and enforcement, argued that Mayorkas’ order is too restrictive when it comes to when authorities can detain illegal immigrants, limiting these cases to situations involving people who are aggravated felons, that pose national security threats, or that recently crossed the border.
“All other criminals they learn of, such as drunk drivers, drug dealers, sex offenders, wife beaters, would have to be submitted to supervisors for approval, and their family ties, illnesses, length of time in the U.S., and ‘contributions to the community’ must be considered in addition to their crimes and illegal status,” she said.
“Under the Mayorkas policies, many criminals and public safety threats have been made exempt from enforcement,” Vaughan added. “Although the law says that anyone here illegally is potentially subject to deportation, his policy is to allow ICE to remove only the worst of the worst, but that excuses a lot of the worst illegal aliens.”
Wofsy counters that DHS' guidelines give immigration agents discretion to decide when immigrants pose a threat and should be detained.
And while Vaughan said the number of deportations has dropped under the Biden administration compared to 2019, United We Dream is angry that, according to their estimates, over 1.8 million people have been deported during the president’s time in office.
In addition, the ACLU is challenging the Biden administration's decision to keep in place the Trump-era practice of immediately expelling those caught trying to enter the country illegally. The Biden administration says the policy is needed to minimize the number of people being held in detention centers during the pandemic. But civil rights groups say the practice denies migrants due process before being removed from the country.
Immigrant rights groups are also unhappy that Biden has not made good on his campaign promise to eliminate what are known as 287(g) agreements, in which local law enforcement officers are deputized to perform duties as immigration agents, including asking people about their immigration status and detaining them until ICE agents arrive.
According to Homeland Security, 66 law enforcement agencies in 19 states had such agreements in fiscal year 2020. Critics say the program has led to local police racially profiling minorities.
Wofsy noted that many cities adopted sanctuary policies during the Obama administration, when over 2.5 million people were deported, more than any administration before.
“It’s wrong to think of sanctuary policies as an anti-Trump movement,” Wofsy said.
The cities, he said, tend to believe that targeting illegal immigrants actually endangers public safety because witnesses and crime victims are scared to work with police—a position also pushed by Castro, the New York City immigration official.
“These laws and policies make our city safer for all and have helped build trust with our immigrant communities,” Castro said. “Our welcoming practices reflect our local expertise and have helped maximize community trust and safety.”
For Vaughan, with the Center for Immigration Studies, that cities aren’t seizing Mayorkas’ plea isn’t surprising. She pointed out that Jeh Johnson, Homeland Security secretary under the Obama administration, made a similar effort “and came up empty-handed.”
“These sanctuary policies are enacted for local political reasons, not because of any legal reasons or resource constraints,” Vaughan said. The localities, she added, “don’t care who is head of DHS.”
Sanctuary cities adopt different policies. But several, in responding to inquires, emphasized that they do cooperate with federal authorities in certain cases, including those involving violent crimes, terrorism or when a federal judge signs an arrest warrant.
Lisa Herbold, chairwoman of the Seattle City Council’s public safety committee, was wary of the phrase sanctuary city, noting that there is no single definition for what it means.
“We prefer the term ‘safe cities,'” she said.
Generally speaking though, Herbold described immigration policies along these lines as limiting cooperation with federal enforcement agents in order to protect low-priority immigrants from deportation, while still turning over those who have committed serious crimes.
In Seattle, under the city’s 2003 “Don’t Ask” ordinance, local officers are not allowed to stop people and check their identification only to see if they are in the country legally. The policy was backed by former city police chief Gil Kerlikowske who went on to become Customs and Border Protection commissioner during the Obama years.
But Herbold said the city does not prohibit officers from working with federal authorities if they have a reasonable suspicion that a person has previously been deported or has committed a felony.
To Herbold, Mayorkas’s plea for sanctuary cities to work more closely with federal authorities seems to suggest a misunderstanding of the local policies, which she described as “not positions of non-cooperation, but defining the limited circumstances where, under federal law, cooperation is required.”
Similarly, a spokeswoman for Philadelphia's Kenney also said the city will comply with requests from federal immigration officials if ICE gets a warrant from a federal judge.
But to Vaughan, such distinctions are misleading. ICE hasn't sought arrest warrants from federal judges, she said.
“That’s like saying they always cooperate when ICE has a leprechaun deliver the warrant,” Vaughan said.
Likewise, she said, allowing local police to work with federal authorities only in cases involving things like terrorism or violent crimes doesn’t go far enough. “The kinds of cases in which they allow cooperation are a small share of criminal alien cases,” Vaughan said.
Nevertheless, cities like Philadelphia are showing no signs of drastically shifting their policies to meet Mayorkas’ request.
"While the mayor appreciates the change in tone and substantial increase in partnership under Secretary Mayorkas and President Biden, he is still committed to ensuring that Philadelphia remains a welcoming city for all immigrants and their families,” said Kenney’s spokeswoman Irene Contreras.
“Even though the past administration tried to force welcoming cities like Philadelphia to go beyond federal law as it relates to immigration enforcement,” she added, “Philadelphia will not do it.”
Kery Murakami is a senior reporter for Route Fifty based in Washington, D.C.