- Five sanctuary bills are currently under consideration by the Maryland state legislature.
- HB 677 and its Senate companion, SB 850, would prohibit state and local detention facilities from entering into agreements to house ICE detainees. These bills will force ICE to send many immigration detainees far away from their families and lawyers, potentially to remote areas where ICE is able to secure detention space.
- SB 649 would prevent any of the state's MVA custodians of records from providing ICE access to any such "public record that contains personal information unless the custodian is provided with a valid warrant or valid subpoena issued by a federal" or state court. This will endanger the lives of ICE agents, and be a boon to smugglers and human traffickers in the state, as well as to alien criminals seeking to avoid detention. It could result in DHS taking action to bar Marylanders from utilizing certain Trusted Traveler programs (as the department has done in New York), and possibly from using their state driver's licenses as identification to board airplanes.
- SB 901 is a comprehensive sanctuary bill, which appears to be based on Montgomery County, Md.'s flawed sanctuary policy. It will all but prevent any communication between state and local law enforcement officials and ICE in the latter agency's attempts to apprehend criminal aliens, hamstring ICE's efforts to protect the community, endanger public safety, and facilitate fraud and terrorism. That bill only benefits criminals, at a huge cost to community safety.
- SB 903 seeks to restrict ICE access to public schools, hospitals, and courthouses, despite stringent agency policies that are already in place concerning immigration apprehensions at those institutions. Simply put, it will make ICE's difficult job of protecting the community even harder, and more dangerous.
The Maryland legislature will consider five separate sanctuary bills this week (HB677 and its Senate companion, SB 850; SB 649; SB 901; and SB 903). Apparently not wanting to be left out of some of the worst sanctuary legislation passed by certain of its sister states, these bills endanger the public and U.S. Immigration and Customs Enforcement (ICE) officers and agents, as well as in one instance (at least) violate federal law. Did I mention that one hurts aliens themselves, and that as a whole they could cost the state a lot of well-paying government jobs? There is also a chilling effect on state and local law-enforcement officers. Not good for a week's work.
Underlying all of these bills (as well as most other sanctuary bills) is the idea that ICE's enforcement of the immigration laws in the interior under the Trump administration is somehow different, in scale or intent, from enforcement in previous administrations.
As I have previously explained, however, ICE Enforcement and Removal Operations (ERO) arrests in FY 2019 actually declined by 10 percent over the previous fiscal year (to 143,099), and the vast majority of those who were apprehended by ERO either had criminal convictions (more than 64 percent) or pending criminal charges (more than 21 percent). Just 14 percent of those who were arrested had "simple" immigration violations.
ICE deported more aliens in FY 2019 (267,258) than it did in FY 2018 (256,085) or FY 2017 (226,119). Most of those aliens (68 percent), however, had been arrested at the border by U.S. Customs and Border Protection (CBP) during the crisis there last year. Specifically, in FY 2019, more than 977,000 migrants were encountered by CBP entering illegally or seeking admission without proper documents along just the Southwest border. By way of comparison, in FY 2012, ICE deported more than 400,000 aliens, and just less than that in FY 2011, and the agency deported more than 350,000 aliens in FY 2013. Even in FY 2014, the agency deported more than 300,000 aliens, before a sharp decline in FY 2015 and FY 2016.
Of the aliens deported in FY 2012, 199,000 (fewer than half) were known criminal aliens, and 36 percent had been apprehended in the interior by ERO, with an additional 2.4 percent encountered in the interior by ICE Homeland Security Investigations, compared to FY 2019, when 32 percent of ICE removals arose from ICE arrests. Removals generally, and removals from the interior in particular, over that seven-year period have dropped, precipitously.
Simply put, President Obama's ICE deported many more aliens from the interior in FY 2012 than President Trump's did in FY 2019, calling into question whether these bills are anything more than rank politics.
Back to the bills pending before the Maryland state legislature. SB 850 and HB 677 would prevent the state and its localities from entering into immigration-detention agreements, in which ICE pays local facilities to house aliens facing removal. At the present time, ICE has such agreements with three localities in Maryland, at facilities in suburban Frederick and Howard Counties, as well as with Worcester County on the Eastern Shore.
Those bills would also prevent the state and localities from entering into agreements with privately run detention facilities, as well as from defraying the costs of such facilities, or receiving payments from them. There are no such facilities in Maryland, although Immigration Centers of America (ICA) had previously considered a site in Sudlersville, a struggling town of 500 in Queen Anne's County, also on the Eastern Shore.
These bills are short-sighted for a number of reasons, not the least of which is the fact that many of the aliens who are presently detained by ICE in Maryland are from the area, and close to the Baltimore Immigration Court and a large population of skilled immigration lawyers. Ending immigration detention in the three counties that currently have contracts to provide it will force ICE to move those detainees to areas where the agency does have space, such as Louisiana, as I explained in an October 2019 post captioned "When States and Localities Bar ICE Detention, Aliens Are Detained Elsewhere: Not the law of unintended consequences, the logical result of shortsighted sanctimony."
These bills, if passed, would eliminate aliens' proximity to families, and could well make it likely that fewer skilled practitioners will be available to represent those aliens. It will also impose a burden on the lawyers who currently represent the aliens to be moved, assuming that they will continue their representation.
I will note that those bills are captioned the "Dignity Not Detention Act". They will likely diminish the former while having no effect on the latter.
SB 649 would prevent any of the state's Motor Vehicle Administration (MVA) custodians of records from providing ICE access to any such "public record that contains personal information unless the custodian is provided with a valid warrant or valid subpoena issued by a federal" or state court.
This provision would, in essence, prevent ICE from accessing MVA driver's license and license-plate information, endangering ICE officers and agents and facilitating the commission of criminal activity (and in particular drug- and human trafficking) in the Free State.
Imagine, for example, that ICE agents see a car leave a known stash house, or a location that is believed to be used for drug or human trafficking. Those agents will have no idea who the owner of the car is, whether the owner has a criminal history (such that they could take appropriate precautions), or whether the license presented by that driver is valid. Does the Maryland legislature understand that this is not a situation in which agents can rush to a court to get a warrant or subpoena?
How about if an ICE agent or officer sees a car or motorcycle careening at a high speed around either of the state's beltways or down a crowded Baltimore street (a much more common occurrence than you could possibly imagine)? That official would, logically, have the authority to attempt to arrest the driver, but to what end? He or she could not run the driver's plates, or check any driver's license presented (assuming the driver had one).
Cops can be scarce in parts of the city (Baltimore was short 470 officers as of October 2019, and has fewer than it had 15 years ago) and the state generally (which has vast remote stretches of highway, particularly in its eastern, western, and northern sections), so does the legislature expect the ICE official to wait for an extended period of time with a potentially dangerous individual for one to show up?
Further, ICE officers would be unable to access the Maryland MVA database to locate the address of any alien who is removable because that alien has been convicted of homicide (1,549 ICE administrative arrests last year), sex offenses (4,658 ICE administrative arrests last year), sexual assault (3,407 ICE administrative arrests last year), or burglary (7,757 ICE administrative arrests last year), unless those officers go through the time-consuming process of obtaining a warrant or subpoena for those records.
How, one might ask, is the community protected by blocking ICE access to MVA records for such individuals? And, how many other criminals could ICE remove from the streets while filing out the paperwork to obtain the MVA information for any one?
That said, it is not as if ICE is randomly running records checks and pulling over vehicles. The agency has limited resources, and as the foregoing statistics show, it is using them extremely judiciously now.
One can imagine how the Department of Homeland Security (DHS) will respond. I note that following passage of New York's "Green-Light law", DHS has barred New York residents from applying for or renewing their enrollment in CBP programs that facilitate cross-border movement without a passport, as I have explained previously. This is not simple spite.
DHS is a massive department, but it was designed so that its agencies can act holistically, as a unit, in responding to national-security and public-safety risks. Maryland can do what it wants with its DMV records, but if it denies ICE access to them, it endangers the entire DHS enterprise. In response, DHS could bar Marylanders from certain of its Trusted Traveler programs, as it has in New York.
And again, because SB 649 bars ICE from its DMV databases, and DHS acts as a unit in protecting the national security, the department's Transportation Security Administration ("TSA," which, among other things, runs the checkpoints at the airports) could bar Marylander's from using driver's licenses to board airliners.
If you have ever been to BWI on a Monday morning, you know how crowded its TSA checkpoints can be. Imagine what that would be like if every Marylander had to present a different document, aside from a driver's license. Reagan National and Dulles might as well set up separate lines, one for Virginians and residents of D.C., and another just for those from Maryland.
The third bill, SB 901, is sanctuary policy in its most base and overreaching form. That bill appears to be based, in large part, on Montgomery County's restrictive (and dangerous) sanctuary policies, which I have detailed in significant detail in the past, particularly in an October 2019 post captioned "Nine Illegal-Alien Sex Assaults since Montgomery County, Md., Sanctuary Policy Declared: Now that victims are coming forward, it is time for the police to do so, too".
Like the Montgomery County sanctuary law, SB 901 prohibits state and local law enforcement from coordinating with ICE "in any way related to civil immigration enforcement", bars ICE agents from non-public areas in state jails and prisons, prohibits state and local law enforcement from contacting ICE about aliens "who may be subject to civil immigration enforcement" or from notifying that agency about an alien's release from state or county jails, and prohibits state and local officers from assisting "in the investigation of the of the citizenship or immigration status of an individual", unless such status "is material to a criminal investigation" — explicitly ending the successful 287(g) program in any locality that would choose to participate.
It grants immunity to, and indemnifies for the costs of any judgment, state and local officials "for refusing to provide information to the federal government ... for the creation or maintenance of a registry for the purpose of discriminating against individuals on the basis of religion, race, gender, sexual orientation, immigration status, or national or ethnic origin." (Emphasis added.)
As that bill relates to religion, race, gender, sexual orientation, or national or ethnic origin, such provisions are laudable, but hardly necessary. Any such registry would likely be unconstitutional, and again, it is not as if the federal government is in the business of discriminating on any of those grounds that I am aware.
The idea of "discrimination" on the basis of "immigration status", however, cheapens the concept (and abhorrent nature) of discrimination as it relates to those other characteristics, for two reasons.
First, the other characteristics are immutable — that is, the individual cannot, or should not be required, to change them. Immigration status, on the other hand, is not. I personally granted legal status to otherwise removable aliens as an immigration judge, and converted aliens into citizens through naturalization. The addition of those other characteristics is nothing more than eye wash for the true intention of the bill.
Which brings me to my second objection. What the drafters of that bill construe as "discrimination" on the basis of immigration status is what the rest of the country understands as the grounds of inadmissibility and deportability under the Immigration and Nationality Act (INA). Differentiating between citizens and nationals on the one hand, and aliens on the other, is not discrimination — it is the law of the United States, passed by the people's representatives. To describe the differentiation of individuals based on whether they are citizens, immigrants, or nonimmigrants authorized to be present in the United States on the one hand, and aliens subject to removal on the other, as "discrimination" is offensive.
You don't have to take my word for it. Barbara Jordan was the first African-American congresswoman from the South, and a civil rights icon. She grew up in segregated Houston, and knew a thing or two about discrimination. Here is what she had to say as the Chairwoman of President Clinton's Commission on Immigration Reform: "It is both a right and a responsibility of a democratic society to manage immigration so that it serves the national interest." The Maryland legislature should heed her admonitions.
To continue, the drafters put some significant teeth into these restrictions. If a law-enforcement officer, consistent with his or her authority under federal law, "knowingly provides information to the federal government ... for the creation of a registry for the purpose of discriminating against individuals on the basis of ... immigration status", that officer would face firing under SB 901. This provision is so vague that no officer would dare even come close to providing ICE with any information, for any purpose whatsoever.
That bill goes much further. It would prevent state and local law enforcement agents from: asking about an individual's citizenship, immigration status, or place of birth in the course of a stop, search, or arrest; detaining or prolonging the detention of an individual to investigate his or her citizenship or immigration status, or based on a suspicion that individual has violated the immigration laws; or transferring an individual to ICE "unless required by federal law".
Not content to stop there, the drafters would require ICE to get a judicial warrant (which, as I have previously explained, do not exist in an immigration context) to transfer an alien from state or local confinement to ICE "for purpose of civil immigration enforcement". And they would prevent state and local officials from detaining an alien for such purposes, transferring an alien to ICE for such purposes, or from "notify[ing] federal immigration authorities of an individual's location, address, or any other information that may be used to aid federal immigration authorities for the purpose of civil immigration enforcement", absent such a warrant.
I would note that the last provision would appear to fly in the face of 8 U.S. Code § 1644, which states, in pertinent part:
Notwithstanding any other provision of Federal, State, or local law, no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of an alien in the United States. [Emphasis added.]
That provision was added to the INA by section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. 104-193 (1996). The conference report for that legislation explains the parameters of this provision:
The conference agreement provides that no State or local government entity shall prohibit, or in any way restrict, any entity or official from sending to or receiving from the INS information regarding the immigration status of an alien or the presence, whereabouts, or activities of illegal aliens. It does not require, in and of itself, any government agency or law enforcement official to communicate with the INS.
The conferees intend to give State and local officials the authority to communicate with the INS regarding the presence, whereabouts, or activities of illegal aliens. This provision is designed to prevent any State or local law, ordinance, executive order, policy, constitutional provision, or decision of any Federal or State court that prohibits or in any way restricts any communication between State and local officials and the INS. The conferees believe that immigration law enforcement is as high a priority as other aspects of Federal law enforcement, and that illegal aliens do not have the right to remain in the United States undetected and unapprehended. [Emphasis added.]
Hence, the indemnification.
Of course, a separate section of that bill states that nothing prevents a law-enforcement official or correctional employee from responding to a request from ICE "for information about" an alien's "criminal record when it is required by state or federal law", or from "sending to, or receiving from, any local, state, or federal agency information regarding the citizenship or immigration status of" an alien "when required by state or federal law", or "otherwise complying with ... a requirement of state or federal law". The bill itself, however, would have a chilling effect on any voluntary transfer of information to ICE. Remember the part about firing? Yeah.
The only way to avoid that chilling effect is if the state and localities provide training to their law enforcement officers about their powers under federal law. Don't expect the legislature to fund such training.
There is a carve-out within the bill for aliens convicted of crimes of violence, as defined by section 14-101 of the Criminal Law article under the Maryland Code. That provision is more specific than the federal definition of "crime of violence" under 18 U.S.C. § 16, and includes murder, rape, robbery, carjacking, assault, and most sexual offenses. For aliens convicted of those crimes, state and local officers "may" contact ICE, provide the alien's address and information about his or her release, and allow access to a state prison or county jail to take that individual into custody.
While this carve-out makes a bad bill slightly less worse, note that it only applies to aliens convicted of those offenses. Aliens who are charged with, say, rape or murder, who are released pending trial, are free to reenter the community and offend again.
Think that won't happen? Consider the following May 2019 press release from ICE:
Josue Rafael Fuentes-Ponce and Joel Ernesto Escobar, both Salvadoran nationals, were previously arrested on May 11, 2018 when they were arrested by Prince George's County [Md.] Police Department (PGCPD) for attempted first-degree murder, attempted second-degree murder, participation in gang activity, conspiracy to commit murder, attempted robbery, and other related charges. ICE officers lodged a detainer with PGCDC, however both were released on an unknown date and time without notification to ICE.
On May 16, 2019, PGCPD arrested the same individuals and charged them with first-degree murder.
Or you can read about the aliens charged with sex crimes after being released by Montgomery County, Md., for other crimes in my October 2019 post.
Not satisfied with the carnage and lawlessness that will result from these provisions, the bill also allows anyone in the state to present a foreign driver's license, foreign passport, or foreign consular identification card to establish identity, for any purpose other than employment authorization verification under federal law.
The Center has explained the weaknesses in such a regime in the context of a similar provision in New York's odious "Green-Light law":
The primary beneficiaries of this law are aliens living illegally in the United States.
Other beneficiaries include those who wish to obtain a government identification document in an assumed name in order to commit fraud, evade justice, avoid scrutiny (in the case of registered sex offenders, debtors, and deadbeat parents), or further other criminal or terrorist activity. Under the right circumstances, anyone can obtain a foreign-issued document of unknown veracity and establish an identity endorsed by the state of New York.
If SB 901 is passed, the same will be true in Maryland. And, as I have previously explained, provisions like this fly in the face of the findings of the 9/11 Commission, which explained how crucial secure documentation is to the national security. In that regard, I will note that, as my colleague Steven Camarota has explained: "Ziad Samir Jarrah, who was on board United Airlines Flight 93 that crashed in Pennsylvania on 9/11, was issued a speeding ticket on September 9 in Maryland for driving 95 miles an hour in a 60-mile-per-hour zone."
Jarrah was a visa overstay at the time, and could have been arrested by the former INS had there been better communication between that agency and Maryland authorities in September 2001, potentially derailing the September 11 attacks. SB 901 will weaken document standards and destroy what little communication there is between the state's law-enforcement officials and the INS's successor, ICE. Maryland, of all states, should know better.
Two final points about SB 901.
First, it makes no sense. ICE has the ability to remove criminals from the public — and out of the country — before they can act again. Many, if not most, of those criminals return to immigrant communities, so if the purpose of the bill is to protect immigrants, it fails. Respectfully, SB 901 only protects criminals — not the communities on which they prey.
And, it is not as if Maryland does not have enough criminals now. There were 348 murders in Baltimore in 2019, the second highest number in that city's history, and its highest per-capita rate ever. Drugs are rampant in Charm City and have hollowed out whole communities, and as noted, the police are understaffed. Only a concerted effort — city, state, and federal (including ICE) — can begin to reverse the trend of violence that has scarred that city and made many places therein a "no-go zone".
This bill endangers the lives of ICE officers, the public, and the alien suspects themselves. It is not as if those officers will throw up their hands and leave. Denied the ability to arrest aliens in the controlled environment of jails and prisons, those officers will have to arrest those aliens on the streets or at their homes — creating a hazardous and possibly deadly situation, as I explained in a recent post: "New York City Shooting Proves the Dangers of Sanctuary Policies: I warned you — almost three years ago".
Second, Maryland should tread more lightly on the prerogatives of the federal government than this bill would require. The state, given its proximity to the nation's capital, is home to many federal facilities. The Social Security Administration (SSA) is headquartered in Woodlawn, Md. (a Baltimore suburb), and has been since 1960, and has 12,000 employees in the state. The National Security Agency (NSA) is headquartered at Fort Meade, which sits between Baltimore and Washington, and has more than 20,000 employees at the site. A drive up the Baltimore-Washington Parkway provides a view into the numerous contractors in close proximity that sell their products, and services, to the NSA.
That simply names two federal facilities that employ thousands in the state, likely a big part of the reason that Maryland is the wealthiest state in the nation (one in 10 workers is employed in the public sector), and the one with the highest proportion of STEM employees (18.8 percent in 2014). There is no requirement that either the SSA, or the NSA, or any other federal agency (like the National Archives in College Park) remain in the state.
And lawmakers in Annapolis should not depend on like-minded legislators in Washington to protect Maryland's claims to these jobs. The Old Line State has eight representatives in Congress and (like every other state) two senators — a relatively small delegation.
The powerful House Appropriations Committee is headed by Nita Lowey — a Democrat from New York, a state that has 27 representatives and two senators. The unemployment rate in Buffalo is 5.8 percent — 25 percent above the national average. You do the math.
Richard Shelby, the chairman of the equally powerful Senate Appropriations Committee is a Republican from Alabama, which has seven representatives and two senators. The Yellowhammer State has an unemployment rate of 2.7 percent (below the national average), but the unemployment rate in Selma is 7.9 percent. Those voters need jobs, too.
Maryland has also been in the running to be the new headquarters of the FBI and work is ongoing to move U.S. Citizenship and Immigration Services (USCIS) to Camp Springs, Md. Why in the world would the Trump administration move the nation's premier federal law-enforcement agency or one of its immigration agencies to a state that does not want to cooperate in federal law enforcement or immigration? Just a thought.
The final bill is SB 903. That bill would direct the state's attorney general (currently Brian Frosh, a rabid opponent of immigration enforcement) to assist public schools, hospitals, and court houses in drafting policies to "limit civil immigration enforcement on their premises", and allow those facilities to "establish and publish policies that limit immigration enforcement on their premises to the fullest extent possible consistent with federal ... law."
Basically, that bill would empower Frosh to do everything that he can to keep ICE out of those institutions. But, as anyone familiar with immigration knows, the agency already treats hospitals and schools (as well as places of worship) as "sensitive locations", where enforcement actions should not occur or be focused unless:
- exigent circumstances exist;
- other law enforcement actions have led officers to a sensitive location, or
- prior approval is obtained from a designated supervisory official.
"Exigent circumstances" in this context means an action that requires immediate action. Does Maryland want a known terrorist or a dangerous serial rapist to avoid arrest by hiding out in the sprawling Johns Hopkins Hospital complex on North Broadway in Baltimore City, or at the 140-acre Johns Hopkins University campus in Homewood (also in Baltimore)? I have gotten lost in both, and I am from Baltimore. I would hope that to ask the question is to answer it, but SB 903 calls that into doubt.
As for courthouses, ICE explains:
U.S. Immigration and Customs Enforcement has for some time had established practices in place related to civil immigration enforcement inside courthouses. However, the increasing unwillingness of some jurisdictions to cooperate with ICE in the safe and orderly transfer of targeted aliens inside their prisons and jails has necessitated additional at-large arrests, and ICE felt it was appropriate to more formally codify its practices in a policy directive that its law enforcement professionals and external stakeholders can consult when needed. It is important that such arrests, including those taking place inside courthouses, continue to be undertaken with the same level of professionalism and respect that ICE officers and agents are committed to exhibiting every day.
In other words, sanctuary policies (like those advanced by the Maryland legislature) have forced ICE agents, for their own safety and the safety of the public, to perform courthouse arrests. Courthouses (like prisons and jails) are secure areas where entrants are screened for weapons, and arresting wanted aliens in those locations make it less likely that ICE officers will have to resort to force.
Who is ICE going after in courthouses, and how? ICE Directive Number 11072.1 explains:
ICE civil immigration enforcement actions inside courthouses include actions against specific, targeted aliens with criminal convictions, gang members, national security or public safety threats, aliens who have been ordered removed from the United States but have failed to depart, and aliens who have re-entered the country illegally after being removed, when ICE officers or agents have information that leads them to believe the targeted aliens are present at that specific location.
Not exactly a dragnet. In fact, the agency explicitly states therein:
Aliens encountered during a civil immigration enforcement action inside a courthouse, such as family members or friends accompanying the target alien to court appearances or serving as a witness in a proceeding, will not be subject to civil immigration enforcement action, absent special circumstances, such as where the individual poses a threat to public safety or interferes with ICE's enforcement actions. [Emphasis added.]
Even this restrictive policy is even more circumscribed:
ICE officers and agents should generally avoid enforcement actions in courthouses, or areas within courthouses that are dedicated to non-criminal (e.g., family court, small claims court) proceedings. In those instances in which an enforcement action in the above situations is operationally necessary, the approval of the respective Field Office Director (FOD), Special Agent in Charge (SAC), or his or her designee is required.
Civil immigration enforcement actions inside courthouses should, to the extent practicable, continue to take place in non-public areas of the courthouse, be conducted in collaboration with court security staff, and utilize the court building's non-public entrances and exits.
As with any planned enforcement action, ICE officers and agents should exercise sound judgment when enforcing federal law and make substantial efforts to avoid unnecessarily alarming the public. ICE officers and agents will make every effort to limit their time at courthouses while conducting civil immigration enforcement actions.
Respectfully, SB 903 is a sanctimonious, virtue-signaling solution in search of a problem that, in all but the most extreme cases, does not exist.
These are bad bills — bad for the community, bad for the safety of ICE agents, and potentially economically harmful to the state of Maryland. Let's hope cooler heads in Annapolis prevail.