Reports and Panel Media
Date: December 14, 2016, at 12pm
Location: National Press Club, 529 14th St, NW, 13th Floor, Washington, D.C.
Jessica Vaughan, from the Center for Immigration Studies, faced William Stock, from the American Immigration Lawyers Association, in a debate on the current state of affairs regarding sanctuary cities at a National Press Club Newsmaker news conference.
Director of Policy Studies, Center for Immigration Studies
President, American Immigration Lawyers Association
Transcript By Superior Transcriptions LLC
ANTHONY GALLO: Ladies and gentlemen, welcome to the National Press Club’s Newsmaker on Sanctuary Cities. My name is Tony Gallo with the Newsmakers Committee at the National Press Club, the world’s largest organization for professional journalists. If you are interested in joining, please see me afterwards.
Sanctuary cities is an extremely important issue today. We have 300 of thee jurisdictions. The governor of New York is now proposing that New York become a sanctuary state. San Francisco is proposing funding legal fees for illegal – undocumented workers. And with that, I think I’ve spoken long enough. And we will have each speaker speak 10 to 12 minutes, and then we will have questions and answers. Jessica Vaughan represents the anti-immigration city side. She is with – the policy director at the Center for Immigration Studies. William Stock is with the American Immigrant Lawyers Association. And he represents the pro-sanctuary cities side.
With that, Jessica, and then William, and then you get a one-minute rejoinder.
JESSICA VAUGHAN: All right. Thank you so much. And thank you all for coming today. Definitely a hot topic. And I’m pleased to have this opportunity to visit these issues in a format that’s going to promote discussion and gives us a chance to explore some of the details of the arguments.
Sanctuary cities, yes or no? The answer is very clearly no. And I’ll be telling you why. Mainly, because they’re illegal and because they create public safety problems, but also because they don’t help in establishing trust between immigrants in the community and authorities. And before I end, I’ll also tell you what I think should be done about them.
We’ve heard that sanctuary policies are fine, that they’re even necessary. And the reasons that people give or supporting or promoting sanctuary policies are basically one of two reasons – one positive, one negative. The positive reason that’s often given is this so-called trust issue. We’ve all heard it said that if local authorities cooperate with federal immigration authorities, then immigrants in the community – especially illegal immigrants – will be afraid to report crimes because they’re afraid that they might then get turned over for deportation. This is something that authorities genuinely should be concerned about, if it were true, but it turns out that it’s not. And I’ll be delving into that a little bit later.
The other main reason that you’re going to hear about in favor of sanctuary cities is a negative reason, and it’s what I call the you can’t make me argument, that the federal government can’t force states to enforce federal law, or make them spend their money on it, or force local officers to become immigration officers. These don’t hold up either, upon examination. And cooperation between local authorities and federal authorities is clearly within the constitutional framework of immigration enforcement.
So I am going to address these arguments, but first I want to give you the three reasons why I think that the federal government must address the problem of sanctuaries. First of all, sanctuary policies obstruct the legitimate enforcement of immigration law, and they’re illegal. It’s important to remember that immigration law is not some obsolete relic of a law that is not worth enforcing.
It protects job opportunities for Americans and for legal immigrants, especially those legal workers who don’t have a college degree. Their job prospects have not improved whatsoever in the last 10 years – not even close to improving. And these are the Americans and legal workers who are hurt most by illegal immigration. And that needs to be more of a consideration for our policymakers.
Also, immigration law protects resources for education, health and welfare, that should be reserved only for citizens and people who are here legally. Illegal immigration is a net fiscal drain on the federal budget by – to the tune of about $50 billion a year. That’s not insignificant.
Perhaps most importantly, immigration law enforcement protects the security and safety of our communities, and that’s because the main target for deportation is and always has been that small fraction of the illegal alien population who are criminals and who are causing problems in our communities. Since ICE doesn’t patrol the streets looking for people to arrest, it depends on local law enforcement to help it identify which illegal aliens are causing the problems. And it turns out that that’s who the sanctuaries end up protecting – the criminal aliens.
And that’s because the most common and the most problematic kind of sanctuary policy is one that tells local law enforcement agencies not to cooperate when the feds are trying to remove someone who has been arrested for a state and local crime. 90 percent of the people being removed by ICE nowadays have a criminal conviction. That’s who ICE is targeting, and that’s who’s protected by sanctuary policies.
Congress thought it was so important for immigration enforcement agencies to have this cooperation that they passed a law in 1996 that made sanctuary policies illegal. Eight U.S. Code 1373 says no local government can have a policy that in any way restricts local officials from communicating or exchange information with the feds, which is exactly what the most egregious sanctuaries do. And that’s the exact policy that was in place when the San Francisco’s sheriff’s office released the man who later killed Kate Steinle in that now infamous case.
In addition, there’s 8 U.S. Code 1324, which says that no one may harbor illegal aliens or shield them from detection by federal authorities. So any place that has a sanctuary policy that goes against these laws is not only putting the people of its community at risk, but they are putting themselves at risk for consequences from the federal government.
Aside from the legal and constitutional issues, sanctuary policies cause public safety problems. This is because the practical effect is that they end up releasing criminal aliens back to the community who should be deported. Starting in January 2014, when the number of sanctuaries started to proliferate, I started keeping track of exactly which jurisdictions were not cooperating, the number of detainers that were rejected because of sanctuary policies, who the subjects of the detainers were, and what happened after they were released.
I was able to obtain a copy of this report through a FOIA request, and we posted it on our website. And this is what ICE found: Over that eight-month period that they studied, sanctuaries released about 8,000 individuals who were the subject of an ICE detainer. By June of 2015, it was 17,000. Sixty-three percent of those who were released already had a serious criminal record, meaning a felony or a violent misdemeanor. Within eight months, already 23 percent had reoffended, just within those eight months. And they were charged with more than 4,000 new crimes. Of those, ICE was only able to re-arrest about 40 percent, and the rest are at large.
Now, the sanctuary supporters say they have no responsibility for the problems created by these releases, and that ICE should just go arrest them. Easier said than done. If you had to arrest an illegal alien gang member or a drug dealer, where you rather do it, in the jail where they’re already being held on local charges, in the street, in their apartment, where you don’t who else is there? Of course not. Forcing ICE to make these arrests in the community is dangerous for the community and for the agents. And it’s also upsetting to the public, and creates this climate of fear that the immigrant advocates say that they are opposed to.
Some say that they understand and deplore the public safety problems created by the sanctuaries, but the nevertheless the sheriffs have no choice but to let the criminal aliens go. And they say that because some courts have ruled that holding the alien for ICE is a civil rights violation. Most sheriffs actually don’t agree with that. Ninety percent of them are complying with ICE detainers. And I estimate that about 250 of the more than 300 sanctuaries that exist now fall into this category of erroneously maintaining that they cannot hold someone for ICE.
What I say to them is, look, ICE does provide warrants – administrative warrants. They’re not required to provide criminal warrants. ICE has offered to pay any additional costs for holding the alien, and has established rapid response teams to get officers there quickly to minimize the cost for the local jurisdiction. But there are still some of these places that will not cooperate on any terms. Cook County, Illinois, San Francisco, Contra Costa and Santa Clara Counties in California, and King County in Washington State still do not cooperate even with all of the accommodations that ICE has offered them. And the reason is – it’s not because of legal issues or cost issues. The reason they have the sanctuary policy is because they want to obstruct immigration enforcement because they disagree with it.
But the federal government can’t just look the other way at this obstruction. So these sanctuary policies are illegal and they are dangerous. To top it off, they do not even accomplish the goal that the allege is their main reason for having them, which is to encourage immigrants to report crimes and to report authorities. First, there is simply no evidence whatsoever that immigrants report crimes any less than others. Not reporting crimes is a problem in a lot of places. And the reasons are complex.
But as I mention in the report that we’re putting out today – which is available on our website – the national-level data on crime reporting show no signs of less reporting of crime by immigrants. The data from a lot of law enforcement agencies that I’ve looked at shows no sign of a decline in crime reporting by immigrants when there’s robust cooperation between the police and ICE, including a very detailed study that was done not far from here, in Prince William County, Virginia, a few years ago.
There have been some surveys done and reported in the academic literature. And what they’ve found is that when immigrants are asked if they did not report crimes and what was the reason, what they say is that it’s because they faced a language barrier, or, the second reason, was that they don’t know how to report the crime, or they didn’t think what happened to them was a crime, not because they were afraid of being turned over to ICE.
So, to the extent that there are access problems to police services, then local police should adopt tried and true community policing policies that directly address those problems, hire officers who speak the languages of the community, have anonymous tip lines, have non-uniformed personnel taking crime reports, do outreach to the community to build ties, and most importantly what they need to do is get the message out that innocent victims and witnesses are never targets for immigration enforcement. That is the message that all of these groups should be spreading, instead of the message that immigrants have something to fear from police. None of the community policing tactics that I mention involve suppressing immigration enforcement.
So what can be done by the Trump administration to address the sanctuary problem? It’s reasonable to expect that this will be a focus for the new administration, because the president-elect has said so and he clearly took to heart the stories of the Americans who’ve lost family members to crimes by illegal aliens. Addressing the sanctuaries has to be an important part of the Trump administration’s plan to boost the deportations of the estimated 2 million criminal aliens who are now in the country. And again, 90 percent of the jurisdictions are cooperating. It’s the 10 percent who are not. But they happen to be in places that do have a lot of criminal aliens.
So the first thing the new administration should do is address the legal concerns of the jurisdictions that make up the majority of the sanctuaries, those 250 that I mentioned. One easy step is to agree to issue administrative warrants where requested. This is not a big deal for ICE. They’re going to have to do it anyway in the processing of someone for deportation. So they might as well do it when they issue a detainer and meet those law enforcement agencies halfway, help them out.
This is a solution that has allowed Suffolk County, on Long Island, which is a big community, has a lot of problems with illegal alien crime. They reserved their sanctuary policy last week, which again I describe in the report. They needed to do this because of a huge problem with MS-13, which has been growing since the arrival of the illegal alien youths from Central America. And hundreds of them have been resettled onto Long Island in those communities.
The next thing I would do is – if I were in the Trump administration, would be to begin to publish a weekly list of all of the criminal aliens who are released by the sanctuaries. I would call it Denny’s list after Dennis McCan who was killed by an illegal alien drunk driver in Chicago in 2011. That illegal alien, his name was Saul Chavez, was one of the first people released under the Cook County sanctuary policy, which is one of the most extreme in the country. And he has never faced charges because he fled to Mexico because Cook County released him because of the newly adopted ordinance that said that they will not turn anyone over to ICE or hold anyone for ICE.
That kind of a list would give you folks here at the Press Club something to write about on a weekly basis, there’s no question. In addition, the new administration should continue the process that it’s already begun to cut federal funds to the sanctuaries. The Department of Justice has recently determined that certain sanctuary policies are inconsistent with federal law. And if you are not complying with federal law, then you cannot receive federal funds. In 2016, the tens jurisdictions that were identified by the Department of Justice as having a policy that’s a problem received $96 million this year that they might end up having to pay back if they don’t change their policies by June 30th, 2017.
This is not unconstitutional coercion, as some have claimed. It’s proper for the federal government to do this if local governments are violation federal law. And it’s been done before. And I think that if the – that there are still, even after taking those steps of meeting the jurisdictions halfway on the legal concerns about warrants and withholding federal funds to the noncompliant jurisdictions – there are still going to be some die-hard sanctuary jurisdictions that are going to cling to their policy. If that’s the case, then, of course, the federal government should look at withholding other kinds of grants.
But if they persist with these policies, the government is going to have to look at possible litigation to enjoin some of the sanctuary policies, or possibly even prosecution in certain circumstances, and selectively, because this continued egregious obstruction of ICE is going to cause more horrific consequences, as we’ve already seen have happened. And I have to say, if I were a police chief or a sheriff watching what’s going on, observing what’s been happening, I certainly would not want to be on the other end of that kind of a case, on the other end of a microphone like this trying to explain to the family members of the victims or to the citizens in my community why I did not do everything possible to get that person turned over to ICE. And I certainly would not want to deal with the potential legal liability either.
So it’s going to be interesting to watch this play out over the coming year. And I think right now some of these die-hard sanctuary jurisdictions are playing a game of chicken with the federal government. But I’m not sure how long the public is going to tolerate it. And the federal government should not tolerate it either. So thank you very much. (Applause.)
MR. GALLO: Thank you.
Before we go on, we know there’s a number of people in the back. We’re very lonely up here. Can you please come up, please? There are plenty of seats up here.
And with that, William Stock will speak for an equal amount of time, and then she will have a chance for a rejoinder.
WILLIAM STOCK: Thank you very much. It’s a pleasure to be here with you today.
“Sanctuary cities.” The phrase is made to make you think of state officials standing between the immigration authorities and immigrants who are subject from removal, somehow shielding them from removal, and in spite of their unlawful status. But in over 300 jurisdictions, there is no policy that instructs officers to actively thwart the enforcement of immigration law. What we’re talking about then is policies that instruct state officials to stand aside from the federal agencies that are responsible for enforcing immigration laws, to let federal law enforcement do their job of enforcing federal laws while the state’s law enforcement resources remain focused on enforcing laws in their communities and keeping their communities safe.
So the question before us today is not whether or not state and local law enforcement is allowed to assist with immigration law enforcement. Clearly, they are if they wish to do so. The question is whether state and local law enforcement can be compelled to provide assistance in federal law enforcement matters, in a civil immigration law enforcement. So in my remarks today, I’d like to briefly address how this current question of immigration enforcement relates to past disputes between states and the federal government over how much the states are supposed to be involved with enforcement of a federal civil law.
So you have to go back all the way into the founding of the republic when you find out that one of the first arguments between the states and the federal government was how much states in the north had to cooperate with states in the south who were trying to return fugitive slaves. And when African-Americans would be kidnapped out of New York or Massachusetts or other states, what assistance did those states’ legal systems have to provide to southern agents who were coming up to capture individuals and take them back?
And so that was the first set of issues that the Supreme Court had to decide. And in fact, the state of Pennsylvania was involved in a case where it said that the state of Pennsylvania could not make it illegal for federal agents to be able to work under the Fugitive Slave Acts in the state of Pennsylvania because of the supremacy of federal law. But at the same time, they never had to make their own state law enforcement resources available to help with that.
Fast forward to prohibition. Everybody remembers that the 18th amendment to the Constitution made it illegal to manufacture, distribute, sell alcohol in the United States. But the federal government didn’t have anywhere near enough law enforcement resources to enforce that throughout the United States. So states and cities were passing laws that allowed them to also concurrently enforce the 18th amendment. But cities and states also decided not to.
The entire state of Maryland, for the entire duration of prohibition, never passed a law allowing the enforcement of that. And so, of course, alcohol remained available on a much greater basis in the state of Maryland than in other places. The city of New York had more places where you could get alcohol during prohibition than it had before prohibition, again, because city and local officials did not support the federal law, and did not cooperate. And the federal government was not able to compel them to do that.
When we talk about whether the federal government should be allowed to compel a state or a city to go along with its priorities, I think we need to be careful to think that any precedent that’s set in the area of immigration law could be equally applied in other areas of law. So, for example, the Federal Firearms Act requires the registration of certain kinds of firearms – sawed-off shotguns, for example – that may be perfectly legal to possess under state law. But many of those weapons, which are involved in terrible crimes, are not registered properly under the federal regulations.
So should there be a law that says no state shall get federal funding if they refuse to turn over to the Alcohol, Tobacco and Firearms any unregistered federal weapon that their police encounter? Well, it’s not very dissimilar from what happened in the Brady Act in 1993, when Congress said that because there wasn’t a national background checking system, state law enforcement officials had to run a background check of any handgun purchaser. All the way to the Supreme Court in the Printz versus United States case, the Supreme Court said the federal government could not commandeer those local resources to enforce a federal purpose.
And so that’s an important precedent about – you know, federal law enforcement is responsible for the enforcement of the immigration laws. If an individual comes into the United States, and they do not have a proper status, if they have a proper status and they let it lapse, or they commit a certain list of crimes, they are removable from the United States and the federal authorities are responsible for removing them.
But to say that a federal law – a state law enforcement officer has to hold onto that individual while a federal officer is coming to get them, while a federal officer is determining whether or not the person is subject to removal, raises serious constitutional concerns, because while it is true that it may be a relatively short period of time, it may be 48 hours or less, it some cases it’s not. And, more importantly, the Supreme Court has already said that the de minimis requirement of running a background check on a handgun purchaser is not something the federal government can compel the states to do.
So to require them to hold and house and feed and transport someone who is a person – this isn’t just a background check; this is keeping physical control of a person for a period of time – goes well-beyond what the Supreme Court has already said is not something that’s allowed to be required by the federal government.
So then we get to the question of funding for – removing funding as a sanction for refusing to cooperate and provide assistance to the federal government in this matter. Well, the Supreme Court has already made that decision as well, quite recently, in the case of Obamacare, where Justice Roberts said that it was unlawful for the federal Obamacare statute to threaten to remove Medicare payments unless states adopted Obamacare’s Medicare expansion.
So in the same way, if we a federal act were to say that states would be deprived of more than the directly relevant law enforcement grants, all right – the grants, for example, that provide states assistance for the costs of housing persons who are undocumented who commit crimes – to go beyond that, to threaten federal funding more broadly would be, again, an unlawful coercion, a violation of the 10th Amendment.
Why are we here? We are here at least in part because we have allowed immigration to be different from every other kind of law enforcement. The city of Philadelphia, where I’m from, has a policy that has been labeled a sanctuary policy. Our mayor has been quite clear that every other law enforcement agency that wants to take custody in the Philadelphia jail system can get a judicial warrant and produce that warrant. The Montgomery County police can do it. The other federal law enforcement officials can do it. But ICE believes it does not have to.
They believe that they can rely on something called an administrative warrant, which is not a warrant at all. The Fourth Amendment to the Constitution says that if someone is to be taken into custody, it must be done upon a warrant proven by probable cause to an independent magistrate. None of those elements are necessarily required of an immigration detainer.
In an immigration detainer, our immigration officers will look at a database or will decide that someone is potentially subject to removal, maybe not even that there’s probable cause that they’re subject to removal. They will then ask for the person to be detained. If the person is detained – so it’s a warrantless arrest, similar to when a police officer encounters someone, you know, driving around, right? They have to have a probable cause that a crime is being committed. But this isn’t even a crime. This is a civil violation of the immigration laws.
And so requiring these procedural protections is not about protecting criminals. Requiring these procedural protections is about protecting lawful residents and American citizens, because situations like, in my own state of Pennsylvania, when the Lackawanna County Sheriff’s Department was served with an immigration detainer for a U.S. citizen, who was then kept in detention for longer than 48 hours, are cases of why these procedural protections are necessary. Why is it not required that ICE bring a person before a neutral magistrate within a reasonable period of time – 48 hours, according to the Supreme Court? Why is that such a big requirement that the immigration service can’t meet, but every other law enforcement agency in the United States somehow manages to?
So I want to conclude with a story about community trust, because what our members tell us is that these kinds of issues are fundamental to the relationships that police in their communities are trying to set up with their broader communities of legal immigrants. And there may be undocumented immigrants who live within these communities of recent immigrants to the United States. But the community policing efforts are about establishing relationships. And as a practical matter, what happens when local police become enmeshed in the enforcement of immigration laws are cases like what one of our members reported from Washington state.
Now, “Mirabella,” who is a – not her actual name – she was arrested during a domestic violence incident. She was the victim of domestic violence by her U.S. citizen husband. She had never called the police before because, of course, her husband was telling her that the police would be on his side and she would be deported. When the police came to the house because of this incident, she only speaks Spanish, and her husband was able to convince the police officers that she had been the aggressor. And so she was arrested. She was taken into removal. She had no relief from removal. She was deported from the United States.
So this is a situation where an individual who was the subject of a criminal investigation at a local level became enmeshed in this deportation system. And this is what will happen. If you have a car which gets pulled over that has four people in it, it won’t matter that there was only probable cause to stop the car because of what the driver was doing. Everyone in the car may become subject to immigration enforcement.
And so these are the reasons why we say that each community needs to be able to make its own decisions in these matters. There are communities who will decide to fully participate and cooperate with immigration enforcement; there are communities who will decide to partially do so; and there are communities who will decide to honor federal requests, there will – to comply with federal law that is consistent with the Constitution, but to go no further. And so that’s what we’re asking should be able to continue. (Applause.)
MR. GALLO: One-minute rejoinder. Thank you.
MS. VAUGHAN: Clearly, what we’re talking about here with sanctuary policies, they’re not just standing aside. They’re standing in between the federal government and an individual that they are trying to deport, and who should be deported from this country.
They’re not being compelled to enforce immigration laws. They’re being asked to hand over an individual to – for a legitimate law enforcement purpose, just like every other law enforcement agency does and cooperates with other law enforcement agencies routinely, just like – this analogy doesn’t apply. When the Washington, D.C. police hand over someone who’s wanted by the state of California on a warrant, they’re not enforcing California law; they’re cooperating. And that’s what ICE is asking for. And ICE is really the only agency that is blocked in this way.
And the other reason that we know that these issues of constitutionality and cost are not really the purpose for sanctuary policies, because when ICE then does offer to pay for any costs to that agency for holding that individual, the sanctuaries still say no. So, you know, ICE has done everything it can to try to overcome these supposed excuses for not cooperating, and they still don’t cooperate.
Why doesn’t ICE give criminal warrants? Number one, there’s no such thing. And any agency that asks for a criminal warrant with a detainer might as well ask for it to be delivered by a blue unicorn on a silver platter, because it doesn’t exist. They know it doesn’t exist. It’s just a way of giving themselves some cover.
What this debate is really about is who gets to decide when the immigration laws will be enforced. Our Constitution clearly gives authority over immigration matters to Congress, and Congress has written laws that allow – that give ICE the tools that they need to enforce the law and also says that sanctuary policies are illegal. So sanctuaries are substituting their judgment for the federal judgment, and that is the problem. That is what’s unconstitutional.
MR. GALLO: And, William, you’ll be able to answer her when you get the first question, unless you have something immediate.
MR. STOCK: No, that’s fine. I’ll be happy to take the first question.
MR. GALLO: No, I’ll call on them.
MR. STOCK: Oh, please.
MR. GALLO: And please identify who you’re with – name, and who you’re with.
Q: Thank you. Peggy Orchowski, congressional journalist for the Hispanic Outlook, and I cover immigration.
Before I ask my question, I really need to clarify that, as immigration journalists in Congress, we cover all sides. We do not refer to people who are – want immigration law enforced as being “anti-immigrant.” We don’t refer to people who support sanctuary cities as being “pro-immigrant.” And we do refer to people who are supposedly undocumented but often have false document(s), fraudulent documents, we refer to them as “illegal immigrants.” So I just wanted to –
MR. GALLO: But what’s your question?
Q: – to clear that up as a member of the Press Club.
My question is, as I understand, the Culbertson (ph) letter refers mainly to convicted felons who have served their time, know that they’re going to be deported, their families know they’re going to be deported – this is no surprise, that everybody knows at the end of their sentence that ICE is to come in and secure them – and yet, for some reason they say no, we’re not going to let them be deported, we’re going to release them. So I don’t know how you can defend not continuing with the sentence, that is unique to illegal immigrants, but they are convicted felons. I don’t understand –
MR. STOCK: Well, look, I think – I think it’s very important to recognize that we support enforcement of immigration law, of people who are convicted of crimes, that are listed as being results – as resulting in deportation, and if there’s no relief from deportation for those folks. The problem with the Secure Communities Program as it existed was it was not focused at the conviction end of the process; it was focused at the arrest end of the process. And someone who’s arrested and charged with a crime – or, even worse, if you look at some of the statistics, it’s – they say – they are compiling together detainer requests that were refused for people who were convicted, arrested or suspected of criminal activity. So what we have seen in communities, our members report to us that what will happen is an individual will get tagged as a suspected gang member and will then be subject to a detainer order from immigration because the criminal authorities don’t have anything to charge them with. Instead, they say let’s use immigration instead and just get this person out of our community.
Q: Kind of a RICO thing.
MR. STOCK: Well, it’s really using immigration law in lieu of criminal law, you know, against someone who they can’t prove a case for.
We saw this after 9/11, where people were – individuals were rounded up with immigration violations and were flagged as suspected terrorists when there was no evidence of whether they were a terrorist or not, but they would be detained under the immigration authority so that they could be interrogated, for example. So –
MS. VAUGHAN: May I just add?
MR. GALLO: Yes. No, no, go to the microphone, please.
MS. VAUGHAN: Again, it’s not the prerogative of state and local governments to decide which illegal aliens or criminal aliens are going to be subject of deportation. The Constitution has given Congress that authority to decide, and ICE is executing that responsibility. You simply cannot substitute – the states and municipalities cannot decide which illegal aliens are going to be deported. It’s simply not their call, whether they’re criminals or not.
MR. GALLO: OK, other questions? Sir.
Q: Well, my question’s for – my name is Steve.
MR. GALLO: Sir, your name and – or your –
Q: Yeah, I was just going to give you that. My name is – my question is for both of you. My name is Steve Camarota. I’m at the Center for Immigration Studies.
So, just so I know both of your positions, if somebody is arrested for drunk driving or doing something, and then the local jurisdiction doesn’t hold them but, say, when we had – or doesn’t charge them, but Secure Communities had shown this person is clearly illegal – they had crossed the border illegally and were fingerprinted, and the fingerprints match – your position is, look, they don’t have to hold him. This person is unambiguously in the United States illegally. The immigration service asks them to hold him, and you’re saying, no, he’s got to be a violent felon who’s previously been convicted. How is that different than open borders? We have a(n) authority who has arrested. The person’s been identified as an illegal alien. Why would we ever release that person? I think most Americans say, well, we don’t want the police rounding people up, but – or what would you – would both of you say that person should be deported, and the jurisdiction should hold them, even if they haven’t actually killed someone or committed another serious crime? Either one of you.
MR. GALLO: OK. Who wants to go up? You first, and then you.
MR. STOCK: Sure. So the first thing I would point out is that the founders of this country understood that the physical detention of any person was the most coercive power that the government has, and it should only be exercised under the supervision of neutral magistrates. They enshrined the privilege of habeas corpus, being able to go in front of a judge and hold that your detention is unlawful, in the Constitution, that it could not be suspended except in cases of invasion or civil war. So what we are talking about is the requirements for physical detention of any person in the United States, that it be done lawfully. And one of those requirements is that any detention be done only upon probable cause, upon showing to a neutral magistrate.
When an immigration service officer requests an individual who the immigration officer suspects is an undocumented immigrant because they’ve been notified through a fingerprint check, they don’t have to prove that to anyone. In fact, that foreign national may not even be subject to any kind of post-detention review of their status for weeks or months.
This term, the Supreme Court will decide whether or not the constraints that they said were lawful on detention of people during the immigration process, whether those have been exceeded over the last 10 years since they made their first decision, all right? Because that coercive detention power is the power of the government that the founders most feared, they required that it be exercised within strict constitutional limits. That’s why I think cities which say, immigration service, please get a warrant, show a neutral magistrate that this person is subject to your jurisdiction, are upholding the Fourth Amendment to the Constitution.
MR. GALLO: Jessica?
MS. VAUGHAN: Now, again, the solution that Bill has suggested is just not – neither required under the law nor practical. What we’re talking about is people are getting arrested, it is discovered that they are here illegally or potentially deportable through a fingerprint match or through an interview in a jail. ICE issues a detainer. That detainer has an indication that ICE has probable cause to believe that this individual is deportable. That’s not even the standard. The standard is articulable facts.
This is not a criminal case, so there are no trappings of the criminal system. There are no magistrates available who could even provide the blessing that he’s suggesting. All that Congress has decided that ICE needs is articulable facts that the person is deportable and that the state or local law enforcement agency “shall maintain custody” of that alien. That’s what the federal regulation says: “shall maintain custody” of that individual for ICE, just as they would do for any other law enforcement agency, up to 48 hours. Usually, ICE gets there much quicker than that. The local – state and local governments get reimbursed, partially, for their costs already through a federal awards program. And again, we’re talking about people who have already been arrested, that sanctuary policies would rather release rather than have them be sent back to their home country where they can no longer prey upon individuals in the community.
MR. GALLO: OK. Here, and then Matt (sic; Mal). Sir?
Q: Yeah. My name is Hector Emilio Corea. I’m with Mexican American Legal Defense and Educational Fund.
I had a question about a statement you just made, ma’am. You mentioned that this was not a criminal case. So I want to ask you, why is it that we are holding these suspected undocumented immigrants in detention if this is a civil matter? And can you note any other instance of federal civil laws requiring people being detained before being given due process?
MS. VAUGHAN: Sure. And again, it’s not just that they’re suspected of being here illegally. The ICE officer has to have articulable facts, and is stating that they have probable cause. And often, you know, the identity is matched through a fingerprint, so they know what they’re doing. Those are the individuals that are being released by the sanctuaries, and the reason that they need them held in custody is because ICE can’t be in every jail and every courthouse, patrolling the streets looking for criminal aliens. When they are notified that a criminal alien or an illegal alien that they want to deport is in someone’s custody, they’re asking for them to be held in custody in accordance with federal regulations and in accordance with the law that Congress has written, which determines what that due process will be. So –
MR. GALLO: OK. Matt (sic; Mal), and then –
Q: Yeah. This one’s for Jessica too.
MR. GALLO: Matt (sic; Mal), please identify.
Q: OK. Mal Kline, Accuracy in Academia.
The $50 billion drain, where does that number come from? What does it include?
MS. VAUGHAN: The $50 billion a year is the net drain on public coffers, the difference between what illegal aliens are estimated to have paid into the system in taxes and fees and so on minus what they are estimated to receive in welfare benefits, educational services, housing, health care, and all the other array of publicly funded services that are made available to them. So it’s a net cost. It’s the difference.
MR. GALLO: OK.
MR. STOCK: And I would just point out that you get that net cost by putting the costs that are attributable to U.S. citizen children onto the foreign nationals, but revenues from the U.S. citizen children as they grow up and become taxpayers on the U.S. citizen side. So that math only works if you count the U.S. citizen children as costs when they’re children but as benefits when they grow up.
MR. GALLO: OK. Other questions?
Q: Hi. Shelby Ostergaard (sp) for The Wire (sp).
How does the lack of a legal definition of sanctuary cities affect the debate that you guys have, especially when you’re talking to people who are maybe not so well-versed in immigration law?
MR. STOCK: I think it’s very critical that we have some sort of understanding of what we’re talking about when we label something “sanctuary cities.” There is no accepted legal definition of what a sanctuary city is. Right now, Section 1373 says that no city – no state policy can prohibit communication between state officers and the federal government with respect to immigration. That’s fine. But it doesn’t answer a far more important question, which is: Does Mayor Jim Kenney want Philadelphia police officers spending time and resources finding out information about immigration status in the course of enforcing the law. So those, I think, we have to define. In 300 jurisdictions you’re going to find 300 different definitions of how they cooperate or don’t cooperate. So we don’t have an idea.
And “sanctuary cities” is a label that’s applied to try and argue that these are cities who are somehow shielding immigrants when, in fact, what they’re doing is simply requiring the federal government to do its job.
MR. GALLO: You want to?
MS. VAUGHAN: Yeah. There’s definitely a spectrum of sanctuary policies across the nation, and it may mean different things to different people. But our definition of a “sanctuary” jurisdiction is any government that has a policy, practice, ordinance, rule, or law that actively obstructs immigration enforcement or shields illegal aliens from federal detection. And there’s even a spectrum of policies within that.
But I would disagree that there is no legal definition because, again, as we’ve discussed, 1373 does say that no government can in any way restrict communication. Another part of the law, 1324, says no one may “harbor, or shield from detection” criminal aliens. So, I mean, I agree that this is evolving, but I think we do have a standard. And ICE knows which jurisdictions are not cooperating.
And so, you know, no one is saying that cities shouldn’t have a policy that’s welcoming to immigrants. The issue is when it crosses the line into obstructing the legitimate enforcement of immigration laws.
MR. GALLO: Other questions? Any other questions? If not, I think we owe both speakers a round of applause. (Applause.) And we especially want to thank the audience here. You’ve been wonderful.
MS. VAUGHAN: Definitely.