DHS removes its list of sanctuary jurisdictions

Last week the Department of Homeland Security (DHS) issued a press release entitled “DHS Exposes Sanctuary Jurisdictions Defying Federal Immigration Law.” 

As Center of the American Experiment reported here, the original release had a link that listed the various jurisdictions the DHS-ICE considered to be “deliberately obstructing the enforcement of federal immigration laws and endangering American citizens.”

The list included the state of Minnesota, the cities of Minneapolis and St. Paul, and twenty Minnesota counties.

On Sunday, the DHS-ICE removed the link and, in effect, the list of jurisdictions. The removal may offer an opportunity for both the DHS-ICE and local law enforcement to re-evaluate and improve their levels of cooperation with one another.

What’s behind the removal?

Reporting on the issue suggests the list was removed because the DHS-ICE had received considerable backlash from jurisdictions and organizations over the vague definition of “sanctuary,” and what the criteria was for ending up on the list.

The President of the National Sheriff’s Association, Kieran Donahue, stated,

“This list was created without any input, criteria of compliance, or a mechanism for how to object to the designation. Sheriffs nationwide have no way to know what they must do or not do to avoid this arbitrary label. This decision by DHS could create a vacuum of trust that may take years to overcome.”

 A senior DHS official provided the following statement to National Public Radio, (NPR) clarifying the sanctuary designation.

“Designation of a sanctuary jurisdiction is based on the evaluation of numerous factors, including self-identification as a Sanctuary Jurisdiction, noncompliance with Federal law enforcement in enforcing immigration laws, restrictions on information sharing, and legal protections for illegal aliens.”

Insight on the issue

From my experience, there are two distinctions at play here: jurisdictions that have overtly adopted sanctuary policies prohibiting cooperation with DHS-ICE, and jurisdictions that are following constitutional timelines involving the detention of criminal offenders. Regardless of the distinction, there is room for improvement by both DHS-ICE and many local jurisdictions.

First, without exception, local jurisdictions should be cooperating with DHS-ICE as it carries out the important work of securing our border and enforcing our immigration laws.

I testified before the Minnesota House Public Safety Committee earlier this year advocating against the adoption of formal sanctuary policies that pit local law enforcement against their DHS-ICE colleagues.

Some of that testimony follows:

“The idea that cooperating with ICE is a waste of finite time and resources for local law enforcement simply falls flat. A core tenet of law enforcement is that officers and agencies help each other when needed. This spirit of cooperation runs both ways, and it serves as the foundation of the law enforcement community, which depends on force multipliers to properly address public safety issues.”

and,

“It’s completely appropriate for law enforcement to collect as much biographical data on those they detain as possible. It would be inappropriate for an officer not to attempt to determine the country of origin or nationality of a potential unauthorized immigrant that they were dealing with. This information facilitates several things, including mandated foreign consulate notifications, checking on the existence of outstate or international warrants, checking on the existence of terrorism watch list notifications, and assisting with future follow up or attempts to locate the individual.”

and,

“Finally, I’d like to address the narrative that cooperation between local authorities and ICE has a “chilling effect” on the willingness of immigrants to cooperate with local police or report crime. This narrative is not born out by the facts. It was not my experience in over 20 years as a criminal investigator, and the Center for Immigrations Studies looked at the issue in 2021 and concluded: ‘We find no evidence in the National Crime Victims Survey data to support the “chilling effect” theory that immigrants are more reluctant to report crimes, generally, or in the parts of the country where local authorities routinely cooperate with ICE.‘”

When a local jurisdiction overtly adopts sanctuary policy, it unnecessarily obstructs the enforcement of our immigration laws and further diminishes our public safety — despite narratives that suggest otherwise.

The ICE Detainer issue

In addition to addressing the need for local law enforcement to cooperate with their DHS-ICE counterparts, I addressed the need for DHC-ICE to acknowledge the legal inability for local law enforcement to hold an individual based solely on an ICE Detainer request. Such a request is not a judicial warrant and does not allow local law enforcement to extend custody of an individual after a local hold expires.

For years, DHS-ICE relied on the ICE Detainer request process and local law enforcement, most often the county jails operated by sheriffs, would hold individuals for up to 48 hrs after local holds expired. This afforded DHS-ICE ample time to travel to a jail and take custody of the individual in a secure setting. 

However, challenges to this practice have clarified the issue in recent years – it’s now clearly settled law that a local law enforcement cannot continue to hold an individual solely on an ICE Detainer after that individual’s local hold has expired.

The Library of Congress summarized the issue here:

“Despite ICE’s revised detainer policy, some courts have held that, under the Fourth Amendment, immigration detainers supported by probable cause that an alien is removable still do not justify the alien’s continued detention by state or local LEOs unless there is probable cause that the alien has committed a criminal offense giving those LEOs a basis to detain the alien for criminal prosecution. These rulings are largely informed by the Supreme Court’s 2012 decision in Arizona v. United States, which held that a state statute authorizing police officers unilaterally to arrest an alien suspected of being removable was preempted by federal law, which exclusively gave the authority to enforce civil immigration laws to federal immigration officers. So these courts reason, because state and local LEOs generally lack the authority to enforce civil immigration laws, they may not hold an alien under an immigration detainer unless there is an independent basis—such as probable cause of a crime—to justify the continued detention. “

This issue can be resolved through cooperation.

Cooperation by local authorities in communicating promptly and professionally with DHS-ICE, being responsive to DHS-ICE’s legitimate inquiries and requests, and in ensuring the safe transfer of custody to DHS-ICE in a secure setting. The alternative forces DHS-ICE into the community to find recently released detainees and increases the likelihood of unintended consequences, such as avoidable use of force situations, and the arrests of other illegal immigrants.

And cooperation by DHS-ICE in acknowledging the limitations local law enforcement agencies have in holding a detainee after a local hold has expired. DHS-ICE cannot continue to put local law enforcement in an unconstitutional bind and must ensure its availability to affect the transfer of detainees in a timely manner at the time a local holds expire. That, or obtain a judicial warrant, which will provide the local jail a valid reason to continue detention.

The takeaway

Enhanced immigration enforcement under the second Trump administration has been dramatic and appropriate — especially given the outright abandonment of enforcement under the Biden administration. 

Both DHS-ICE and local law enforcement can do more to improve cooperation with one another, thereby ensuring the public safety we all deserve.