Why Is Trump Losing the Sanctuary Battle?

By Andrew R. Arthur on September 22, 2017

In June, I wrote about the possible consequences of California's Senate Bill 54 (SB 54). On Saturday, September 16, 2017, that bill passed the California Senate, and has been sent to Governor Jerry Brown for his signature. As the Los Angeles Times reported:

After passionate debate in both houses of the Legislature, staunch opposition from Republican sheriffs and threats from Trump administration officials against sanctuary cities, Senate Bill 54 was approved Saturday with a 27-11 vote along party lines. But the bill sent to Gov. Jerry Brown drastically scaled back the version first introduced, the result of tough negotiations between Brown and [Sen. Kevin] De León in the final weeks of the legislative session.

Thomas Homan, acting director of Immigration and Customs Enforcement (ICE), correctly said in a statement on the day that bill was passed, "California politicians had 'chosen to prioritize politics over public safety.'" Or, as Department of Justice spokesman Devin O'Malley put it more bluntly, "state lawmakers inexplicably voted today to return criminal aliens back onto our streets." The question is, how are those lawmakers able to get away with it, given the carnage inflicted by criminal aliens in California?

Having lived in California, I can assure you that "tough negotiations" is a relative term as it relates to Golden State politics. As the Times explains:

Officially dubbed the "California Values Act," the legislation initially would have prohibited state and local law enforcement agencies from using any resources to hold, question or share information about people with federal immigration agents, unless they had violent or serious criminal convictions.

After talks with Brown, amendments to the bill made this week would allow federal immigration authorities to keep working with state corrections officials and to continue entering county jails to question immigrants. The legislation would also permit police and sheriffs to share information and transfer people to immigration authorities if they have been convicted of one or more crimes from a list of 800 outlined in a previous law, the California Trust Act.

The bill still:

States that the Attorney General shall publish model policies limiting assistance with immigration enforcement to the fullest extent possible consistent with federal and state law at public schools, public libraries, health facilities operated by the state or a political subdivision of the state, courthouses, Division of Labor Standards Enforcement facilities, the Division of Workers Compensation, and shelters, and ensuring that they remain safe and accessible to all California residents, regardless of immigration status.

As it relates to O'Malley's statements, it also:

Requires the Department of Corrections and Rehabilitation (CDCR) to do the following: a) In advance of any interview between [ICE] and an individual in CDCR custody regarding civil immigration violations, provide the individual with a written consent form with specified information. b) Upon receiving any ICE hold, notification, or transfer request, provide a copy to the inmate and inform them whether CDCR intends to comply with the request.

Proponents claim that this bill is necessary to ensure "trust" between immigrant communities and law enforcement. As the bill states:

The Legislature finds and declares the following:

(a) Immigrants are valuable and essential members of the California community. Almost one in three Californians is foreign born and one in two children in California has at least one immigrant parent.

(b) A relationship of trust between California's immigrant community and state and local agencies is central to the public safety of the people of California.

(c) This trust is threatened when state and local agencies are entangled with federal immigration enforcement, with the result that immigrant community members fear approaching police when they are victims of, and witnesses to, crimes, seeking basic health services, or attending school, to the detriment of public safety and the well-being of all Californians.

(d) Entangling state and local agencies with federal immigration enforcement programs diverts already limited resources and blurs the lines of accountability between local, state, and federal governments.

These arguments were reiterated in the Times article:

On Friday, lawmakers said some children without legal status were too afraid to go to school, while police statistics showed a drop in reports of sexual assault and domestic violence as immigrant victims refused to come forward.

Assemblywoman Cristina Garcia (D-Bell Gardens) said the era was reminiscent of the 1980s, when her father dreaded immigration raids.

"We are not living in a hypothetical fear," she said. "That fear is a reality."

There are a couple of points in the foregoing that need to be addressed.

As for the referenced police statistics, it is not clear how it could be determined that crimes that had not been reported had been committed. Usually, a drop in reports of crime are indicative of a drop in crime, not proof that crimes were not being reported. Using this standard, any local mayor who is politically opposed to the president's immigration policies could claim that any decline in any category of crime reporting showed that victims were not coming forward because (1) the victims were afraid that they would be reported to ICE, or (2) the victims were concerned (for some reason) that the offenders would be reported to ICE. In fact, that appears to be the argument that California is making.

Let's break down that argument. As it pertains to the victims of crime, it is nonsensical to believe that a local cop would report a victim (who would logically be needed as the witness to the criminal offense) to ICE, ever. And, anecdotally (but based on a lot of personal experience), it never happens.

Between my roles in the former Immigration and Naturalization Service (INS), and my years as an immigration judge, I handled about 25,000 cases. In those 25,000 cases, I never, ever, saw one involving an alien who was placed into proceedings because he or she came to the attention of INS or ICE as the victim of or witness to a crime.

Nor would I, because as I explain above, cops don't turn witnesses in to immigration authorities. In addition, and as I have explained elsewhere, many alien victims of crime are in fact eligible for immigration benefits as a result of being victims. This includes victims of sexual assault and domestic violence, the two crimes that were explicitly mentioned by the Times.

In fact, Assemblywoman Cristina Garcia (D-Bell Gardens), is correct in stating that: "We are not living in a hypothetical fear ... . That fear is a reality." The problem is that it is not a fear of actual immigration enforcement and that she, and the Times, are the ones who are propagating that fear.

The real fear is a fear of alien criminals who are being returned to the streets instead of being removed, and an overhyped fear of straw-man immigration enforcement that is spread by self-serving politicians hustling for special-interest group votes and promoted by an ill-informed (and perhaps consciously gullible) press.

The fear of real alien criminals should have been fresh in the minds of the members of the California Senate on Saturday. On Tuesday, August 15, 2017, Abel Enrique Esquivel Jr. was shot to death in the Mission neighborhood of San Francisco. Press reports on Friday, September 15, 2017, stated that "18-year-old Erick Garcia-Pineda stole the murder weapon from the personal car of a San Francisco police officer" and, authorities claim, shot Esquivel. According to the Washington Post:

Authorities say Garcia-Pineda had been detained by immigration authorities in December and released from custody in April pending deportation. An immigration judge required him to wear an ankle monitor and routinely check in with immigration officials.

He failed to show up for his August appointment, said James Schwab, a spokesman for Immigration and Customs Enforcement.

His ankle monitor was removed when he was arrested on Sept. 3 by sheriff's deputies on misdemeanor battery charges. ICE says the Sheriff's Department ignored a request to block his release from jail that day.

Investigators later connected Garcia-Pineda to the killing of 23-year-old Abel Esquivel during a robbery.


San Francisco police say Garcia-Pineda and two other young men began driving around the city looking for robbery victims after they stole the gun on Aug. 11.

Garcia-Pineda was not the only individual in that matter who had been sought by ICE. The Post continues:

ICE agents also asked the local sheriff in May to detain a second man arrested locally who is also charged with Esquivel's murder, Jesus Perez-Araujo, 24.

San Francisco police arrested Perez-Araujo for possession of marijuana and illegal possession of brass knuckles. He was ultimately only charged with misdemeanor possession of brass knuckles, court records showed.

As the local NBC affiliate reported:

The [ICE] retainer [sic] against Perez-Araujo was not honored, immigration officials said. He apparently did not meet the felony history required by the city administrative code established to determine when such holds could be honored under the city's sanctuary city policy.

Attorney General Jeff Sessions entered this fray on Tuesday, September 19, 2017. Speaking to federal law-enforcement authorities in Portland, Ore., he discussed the dangers of sanctuary-city policies, and detailed a number of incidents in which ICE detainers were not honored for aliens who went on to commit serious crimes, including the alleged killers of Abel Esquivel:

And just in the last week, 23-year-old Abel Esquivel, a popular community volunteer who mentored young people in his San Francisco neighborhood, was allegedly shot to death by two illegal aliens attempting to rob him after he left work.

About three weeks earlier, one of his alleged killers was arrested for an alleged battery, and, despite a detainer request from ICE, he was released. One of the other defendants in the murder case also had an ICE detainer request for him when he was arrested back in May for illegal possession of marijuana and brass knuckles. Both requests were ignored. Both walked free.

And because of these policies and in the face of all common sense, Abel was gunned down in the street by two people who never should have been there.

Sadly, after these tragic cases, the legislature in California — where these tragedies occurred — has now passed legislation to further limit law enforcement cooperation with immigration enforcement.

It is an unconscionable reaction to Mr. Esquivel's murder to put into law the very policies that got him killed.

The attorney general also mentioned the now-infamous murder of Kate Steinle, and described a local offense that was the result of another sanctuary-city policy:

Just two months ago, an alleged illegal alien named Sergio Martinez was arrested in Portland.

Martinez had been deported at least 20 times, and police reports show that he was arrested at least 10 times just this year – accused of everything from possessing drugs to stealing a car.

Federal immigration authorities properly lodged a detainer against Martinez just a few months before, asking to be notified when he was set to be released. But authorities in Oregon refused.

According to the allegations, Martinez then broke into the home of a 65-year-old Portland woman by crawling through her bedroom window. Once inside, he reportedly forced her to the ground, used scarves and socks to blindfold, bind, and gag her, and then raped her and slammed her head into the wooden floor.

Sessions argued that sanctuary city guidelines have effects far beyond the release of specific criminals:

These lawless policies do more than shield individual criminal illegal aliens – they also shelter lethal gangs like the Latin Kings and MS-13.

These predators thrive when crime is not met with consequences. This state of lawlessness allows gangs to smuggle guns, drugs, and even humans across borders and around cities and communities.

That makes a sanctuary city a trafficker, smuggler, or gang member's best friend.

This is an interesting and sophisticated argument, but one that every immigration expert knows to be true. Sanctuary cities encourage foreign nationals to seek to enter the United States illegally because they know that if they can reach one of these locales, they will be protected by the local authorities, including people like Assemblywoman Cristina Garcia (D-Bell Gardens).

These cases shock the conscience, the policy implications are clear, and the attorney general's arguments are compelling. So, again, why are sanctuary-city laws, like SB 54, proliferating?

Much of it plainly has to do with the press's attitude toward the president and his immigration policies, although those policies are, by and large, not that different from those followed by the majority of his predecessors, and are essentially what the Immigration and Nationality Act (INA) and its implementing regulations require. But consider the following story from the Hill: "Feinstein: Trump immigration policies 'cruel and arbitrary'".

There was no hue and cry calling out the senior senator from California, who as ranking member of the Senate Judiciary Committee should know better, despite the fact that in reality the president's immigration policies are anything but arbitrary. "Arbitrary" means: "Based on random choice or personal whim, rather than any reason or system." Trump's policies are the opposite of this — they are firmly premised in the idea that the laws as written be objectively enforced, regardless of superfluous factors.

Rather, it was the previous administration that had the "arbitrary" immigration policies. If you do not believe that President Obama and his staff applied the immigration laws based on personal whim, you are not being honest. But Feinstein's opinion represents the rap on Trump for some portion of the population and a lot of the press. And as Mark Twain once said: "Give a man a reputation as an early riser and he can sleep 'til noon." Only in this case, it is "Give Donald Trump a reputation as a knuckle-dragging separator of families, and he can praise DACA recipients and still be portrayed as the new "deporter-in-chief".

This problem is compounded by the complexity of the immigration laws themselves, and the susceptibility of the press in heartrending human-interest stories. Take, for example, a March article from USA Today titled "These undocumented immigrants thought they could stay. Trump says deport them." It begins:

Angel Ortiz Paz was warming up his car just before 6 a.m. outside his Gaithersburg, Md., townhouse on a recent morning when federal agents pulled in behind him.

The [ICE] agents were looking for two other men who were undocumented immigrants in the neighborhood, but they started asking Ortiz about his status. As his wife and two children — all U.S. citizens — were inside the house, Ortiz showed them his Maryland-issued driver's license and his Honduran passport.

The agents ran a background check on the information and found that Ortiz was also an undocumented immigrant. They saw a 9-year-old DUI conviction on his record and a 16-year-old deportation order issued by a federal judge shortly after Ortiz illegally crossed the southwest border into the U.S.

The agents handcuffed and arrested Ortiz. On Monday, after failed attempts to appeal his case, Ortiz was deported back to his native Honduras, according to his family.

There is only one salient point in those four paragraphs: agents saw that Ortiz was (apparently) under a final order of removal. The only reason that I say (apparently) is because there is nothing in the article that suggests that Ortiz was deported previously on that order. If he was, then he violated section 276(a) of the INA, as an alien who reentered illegally after being deported, a class E felony offense under 18 USC § 3559(a)(5).

Warming up your car is not a removable offense (although leaving it running unattended in Maryland, curiously, is a criminal offense), nor is being in the area of other illegal aliens sought by ICE, being an illegal alien with a Maryland-issued driver's license (assuming it was lawfully issued), or even drunk driving. The article tries to make it seem unfair that Ortiz was arrested because he was not the illegal alien that the agents were looking for, but I doubt that even under the much more permissive attitude of the Obama administration (at least until the issuance of the notorious Jeh Johnson November 20, 2014, Memorandum on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants), he would not have been at least arrested, if not deported. All the rest is fluff, intended to make enforcement of the laws of the United States seem "cruel and arbitrary".

That article doesn't stop there. It goes on to describe the case of Clarissa Arredondo:

Arredondo's family describes her as the backbone of the Southern California family, a mother of three and grandmother to two children who are U.S. citizens. She worked cleaning houses and would often care for her grandchildren, whose father is a Navy veteran now working as a U.S. contractor in Afghanistan, according to The San Diego Union-Tribune.

But life as she knew it ended on Valentine's Day, when ICE agents arrested her. Arredondo pleaded guilty in 2003 to a charge of felony welfare fraud in a case where she misrepresented her income to obtain food stamps and cash assistance for her children. She was also deported from the country in 2005 when she tried to enter through a port of entry in Southern California, according to the Union-Tribune.

Arredondo's case moved quickly, and she was deported to her native Mexico on March 3 without appearing before a judge. That process is known as an "expedited removal," which allows federal immigration agents to unilaterally deport some undocumented immigrants, a process Trump wants to expand throughout the country.

Curiously, although this passage does not explain what Arredondo's status was at the time of her arrest, the referenced San Diego Union-Tribune article sheds more light on her case:

Arredondo was previously removed from the U.S. in 2005, according to Lauren Mack, spokeswoman for Immigration and Customs Enforcement.

Mack said that Arredondo tried to enter the United States at the Otay Mesa port of entry in 2005. U.S. Customs and Border Protection officers determined that Arredondo did not have authorization to enter the United States, and they sent her back to Mexico.

Mack said that border officials at that time used a process called "expedited removal," which allowed them to determine that Arredondo was not admissible to the country without letting her see a judge.

Because that order was still on her record, when immigration officials targeted her last month, they were able to remove her again without giving her a hearing with an immigration judge.

Although it was not clear from this article what Arredondo's status at the time of her 2017 arrest, an earlier report from the same paper stated that "Clarissa Arredondo, 43, is an unauthorized immigrant, as is her daughter, Adriana Aparicio." According to that piece:

Aparicio is enrolled in former President Barack Obama's deferred action for childhood arrivals program or DACA and has applied for the military and veteran family protection, known as Parole in Place.

Taking all of this as a whole, Arredondo entered illegally after attempting to enter illegally and being subjected to expedited removal under section 235(b)(1)(A)(i) of the INA, which happened after she engaged in felony welfare fraud. All of the other facts are extraneous. Most importantly, however, she would have been an Obama administration Priority 1 removal case, even under the aforementioned November 20, 2014, Memorandum, because of her felony conviction. But arresting a grandmother who is the mother-in-law of a "U.S. contractor in Afghanistan" on Valentine's Day? That must be "cruel and arbitrary".

In addition, it is doubtful that she was "deported to her native Mexico on March 3 without appearing before a judge" under "expedited removal". Rather, it appears that she was subject to reinstatement under section 241(b)(5) of the INA:

Reinstatement of removal orders against aliens illegally reentering.-If the Attorney General finds that an alien has reentered the United States illegally after having been removed or having departed voluntarily, under an order of removal, the prior order of removal is reinstated from its original date and is not subject to being reopened or reviewed, the alien is not eligible and may not apply for any relief under this Act, and the alien shall be removed under the prior order at any time after the reentry.

The USA Today article also details the case of Romulo Avelica-Gonzalez:

After dropping off his 12-year-old daughter at her Los Angeles school last month, Avelica-Gonzalez drove away and was pulled over by ICE agents in black, unmarked vans. The father of four children who are U.S. citizens has lived in the U.S. for 25 years, but he is now facing deportation, according to the Los Angeles Times.

His arrest just six blocks from his daughter's charter school caused such a panic that administrators held an assembly to calm their students, according to the Times. In the weeks following the arrest, teachers have met with children of undocumented immigrants about creating family plans in case a parent is deported.

Avelica-Gonzalez has two marks on his record: a 2008 conviction on misdemeanor charges of DUI and driving without a license, plus a 1998 conviction for receiving stolen property when he bought a non-DMV-issued vehicle registration tag. ICE told the Times that those convictions led to a deportation order in 2014.

He now remains in federal custody awaiting deportation as his attorneys try to win his release.

Again, there is only one relevant fact in those four paragraphs: Avelica-Gonzalez was arrested because he is under a deportation order, which was apparently final at the time of his arrest. Because of that order from 2014, again, Avelica-Gonzalez would have been a priority under the November 20, 2014, memorandum, and therefore subject to arrest even under the Obama administration. Although the USA Today story claims that Avelica-Gonzalez was ordered removed in part because of his "2008 conviction on misdemeanor charges of DUI and driving without a license," neither of those crimes is a removable offense. The Los Angeles Times reports that Avelica-Gonzalez was "an immigrant in the country illegally", which would render him removable even absent the 2014 order.

But "black, unmarked vans?" Cruel and arbitrary, especially if they are only "six blocks from [a] charter school". Would Crown Victoria sedans with emergency light bars and emblazoned "ICE" on I-5 make the arrest better for anyone involved?

The real problem is that President Obama refused in many instances to enforce the immigration laws of the United States based on "arbitrary" (but not cruel, except to the victims of alien crime) determinations, and a certain segment of the population liked it. But not the majority. As FiveThirtyEight (hardly a conservative source) recently stated: "Trump's Hardline Immigration Stance Got Him To [t]he White House". But like most heroin users after they get their initial high, once the latter segment of the electorate got the idea that the immigration laws could be arbitrarily ignored, they liked it, and wanted more. Under President Trump, they are not getting it, so they are pushing back with more, and more stringent, sanctuary laws.

Feinstein knows how to change the laws if she does not like them. In fact, in the 111th Congress, the Democratic Party held the House, the Senate (including, at times, with a filibuster-proof majority), and the White House, but it left in place the "cruel" immigration laws that it now denounces.

Executive branch efforts by the Trump administration to stem sanctuary laws have met with resistance in the federal district courts in the Northern District of California and the Northern District of Illinois, but the Justice Department in those cases has a good chance of prevailing on appeal.

That said, the prospect of DACA legislation will give Congress a chance to address this issue once and for all. Congress needs to be clear that there is only one immigration law in the United States, and that is the law that it has established.

A good place to start would be H.R. 3003, the "No Sanctuary for Criminals Act", now pending in the Senate. That bill would amend the INA "to prohibit any federal, state, or local government from prohibiting any government entity, official, or employee from complying with the immigration laws or cooperating with federal law enforcement of such laws" and would "expand[] the scope of law enforcement activities relating to immigration-related information that a federal, state, or local government may not restrict or prohibit." It would also specifically empower ICE to "issue a detainer if it has probable cause to believe that an individual arrested by a federal, state, or local law enforcement official for an alleged violation of any criminal or motor vehicle law is inadmissible or deportable," and prevent the agency from "transfer[ring] an alien with a final order of removal to a non-complying state or political subdivision."

Even then, more can and must be done. I am as strong a believer in federalism as any, but there is a reason that the Constitution gave Congress the authority to make immigration laws. Illegal aliens are not like the shopping carts at the Safeway that stop moving once you try to take them off the lot. Populations of people are mobile, and California's illegal alien population today can become Nevada's tomorrow, and Utah's next Tuesday. So immigration laws must be enforced. Even on Valentine's Day.