Would Prosecuting Sanctuary Politicians be 'Extreme'?

By Dan Cadman on January 10, 2018

Tom Homan, the acting director of Immigration and Customs Enforcement (ICE), recently suggested that political leaders who establish policies requiring law enforcement agencies to release alien criminals into the community instead of turning them over to ICE agents for removal proceedings may face arrest and prosecution.

Two reliably liberal bastions were prompt with their outrage and condemnation. The Huffington Post shouted, "Trump ICE Chief Wants To Prosecute Politicians Who Won't Lock Up More Immigrants" and Jonathan Blitzer wrote an article in the New Yorker entitled, "In Calling for Politicians' Arrest, an ICE Official Embraces His New Extremist Image".

The Huffington Post is wrong: Homan isn't asking anyone to "lock up more immigrants". He's only asking political leaders to stop obstructing police from cooperating with ICE by giving them dangerous alien criminals who have already been arrested — only when asked to do so, and only after state and local criminal justice systems are done with them.

Nor does this seem to me to be "extreme". It's more along the lines of a "render unto Caesar" prescription. Decisions about who is deportable or not deportable are uniquely federal decisions and should not be usurped by state or local officials who want to substitute their own views on the matter.

It should also be kept in mind that when sanctuary jurisdictions undertake to let criminal aliens go despite the filing of an ICE detainer (a "hold" in the parlance of police work), they are having a negative impact not just on their communities, but on other states, counties, and cities as well, because once released, nothing stops that alien from drifting away and into another community, where he may wreak even greater harm against a populace that had nothing to do with his release back to the streets in the first place (or the second, or third, or fourth, when he is a repeat offender repeatedly let go — something that happens with dispiriting regularity).

The subhead of the Huffington Post article was "Legal experts say the threat won't hold up in court, but it still matters." I'm not sure that's true either, and this is something I've beat the drum about a number of times before (see here and here, for instance).

The federal law that makes it a felony to smuggle or transport aliens into the United States also contains a section criminalizing acts or attempts to harbor illegal aliens, whether those aliens are criminals or not:

Any person who—

...knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. (8 U.S.C. Section 1324(a)(1)(A)(3).)

The fact that police would harbor and shield a criminal alien only makes matters worse. If any ordinary John Doe were to be convicted of this provision, the fact that the alien was a criminal would inevitably lead to sentencing enhancements to bring the jail time actually imposed much higher on the sliding scale than if it were your run-of-the-mill illegal border crosser with no shady history.

The two relevant questions are simple but tricky: Does the provision apply, and are politicians liable? I think a sound case can be made for answering both in the affirmative.

Note, first, that the provision doesn't distinguish between government officials and ordinary citizens in its application, which is clearly designed to be broadly applied. It indisputably says "any person".

Note, second, that the provision uses the phrase, "knowing or in reckless or disregard of the fact that an alien ... remains in the United States in violation of law." When ICE files a detainer, it has officially put the police organization on notice that it believes the alien is in the United States in violation of law. How can anyone then deny either knowledge or reckless disregard?

While it may be true that this fact hasn't be dispositively ruled upon by an immigration judge yet, that seems a poor legal argument for officials to use in defending against a harboring charge, since the catch-22 of their sanctuary policy is that ICE won't be able to put the alien in front of an immigration judge as long as police keep releasing him behind their backs.

Consider this situation: ICE agents go to the front counter of a restaurant and politely speak to the manager to advise him or her that they know that an illegal alien is working in the kitchen. They ask that the alien be tendered over to them, and instead the manager goes into the kitchen, alerts the alien, and helps him to sneak him out the back door, into the alley, over a wall, and away scot-free. Another employee sees this and tells the ICE agents exactly what happened. That manager's goose is already cooked halfway to well-done.

Why should police and politicians be held to a different standard? In fact, don't we as a people have the right to hold them to a higher standard, not a lesser one?

One might argue that it is the police officers, jail guards, or deputy sheriffs who are doing the actual dirty work of release here, not the politicians, but that kind of thinking went out with the Nuremberg trials, which established the legal premise of command accountability. The ones who order and direct illegal acts are as responsible as those who carry them out. This is a line of thinking that, if anything, has been refined and expanded with the passing years, and rightly so.

So, yes, it seems to me that politicians do, in fact, hold responsibility (and culpability) for releasing alien criminals whom ICE wishes to take custody of. Is that not a form of harboring and shielding them from the only officials who are legally empowered to take custody of them to initiate removal proceedings? To argue otherwise is mere wordsmithing.