Sanctuary cities ‘harboring’ aliens: Trump’s next immigration target?

Some sanctuary cities provide municipal ID cards to undocumented aliens to make it easier for them to remain in the United States unlawfully.  

For instance, the San Francisco Board of Supervisors passed an ordinance on Nov. 20, 2007, authorizing the County Clerk’s Office to issue SF City ID Cards.  This photo identification card streamlined access to government programs for undocumented alien residents and connected them to local businesses, e.g., by providing a form of identification that could be used to open a checking account at participating banks.

New York City also has a municipal ID card.  It connects New Yorkers to services, programs, and benefits, regardless of immigration status.

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Five days after President Trump’s election, Chicago Mayor Rahm Emanuel reiterated Chicago’s commitment to being a sanctuary city.  He said, “Chicago has been a city of immigrants since it was founded.”  He also announced that a Municipal ID program was being developed and provided a link to Chicago’s Office of New Americans which is intended “to make Chicago the most immigrant-friendly city in the world.”

{mosads}On March 29, 2017, he introduced an ordinance to the ity Council to establish the promised municipal ID card because many vital services require proof of identity, and some populations have difficulty accessing official identification, such as undocumented immigrants.  The ID card will provide them with access to city services, cultural institutions, programs, and other benefits.  “This program represents our values and reaffirms that everyone is welcome in this city.” 

In President Trump’s Executive Order 13768, Enhancing Public Safety in the Interior of the United States, he declares that “Sanctuary jurisdictions” that “willfully violate Federal law in an attempt to shield aliens from removal from the United States” have caused “immeasurable harm to the American people and to the very fabric of our Republic.”  He intends to withhold federal funds from these jurisdictions, “except as mandated by law.”

This could cause serious financial problems for Chicago.  In FY2016, Chicago received the second highest amount of federal funding in the country, $5.3 billion.  Information is not available yet on how much of this funding would be subject to withholding.

On March 27, 2017, Attorney General Jeff Sessions announced that, “the Department of Justice will require jurisdictions seeking or applying for Department grants to certify compliance with Section 1373 as a condition for receiving these awards.”  Apparently, for now at least, the working definition of a “sanctuary jurisdiction” is a jurisdiction that refuses to comply with the requirements of that section.

Section 1373 of the Immigration and Nationality Act (INA) provides that state and local government jurisdictions may not prohibit, or in any way restrict, any government entity or official from sharing immigration information with U.S. Immigration and Customs Enforcement (ICE).

On Jan. 3, 2017, Representative Lou Barletta introduced, the Mobilizing Against Sanctuary Cities Act, which would withhold federal financial assistance from state and local governments that refuse to comply with that section.

Gregg Jarrett, a Fox news anchor and former defense attorney, has observed that if this approach fails to force city officials to abide by the law, President Trump can consider charging them with crimes.   

According to James H. Walsh, who was an associate general counsel for the Immigration and Naturalization Service, there are several federal statutes that apply to state and local officials and others who interfere with the enforcement of our immigration laws.

I have found at least one provision in the INA that seems to be an appropriate basis for such prosecutions, 8 U.S.C. §1324(a)(1)(A)(iii).  It provides criminal penalties for concealing, harboring, or shielding aliens from detection who are in the United States illegally.

It does not specify what actions constitute “harboring.”  This has been left to the courts, and the courts have not settled on one uniform definition.  But the most frequent characteristic the courts have used to describe “harboring” is that it facilitates an immigrant’s remaining in the United States illegally, and this seems to be the primary reason for sanctuary cities and municipal ID card programs.

Criminal prosecution of responsible government officials is preferable in some ways to withholding federal funding.  Withholding federal funding mainly would hurt the people who depend on the funds.  It would not have a direct impact on the responsible officials the way prosecuting them would.  

Also, the Supreme Court has held that such restrictions on federal funds must “bear some relationship to the purpose of the federal spending,” which may be difficult to establish in this situation.  

In any case, we appear to be headed for major conflicts between the Trump administration and state and local governments, which could take a very long time to resolve.  

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.

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