California's 'sanctuary state' bill is illegal, but also ineffective

Published on July 20th, 2017

By Nolan Rappaport
July 15, 2017
The Hill
Activist Dolores Huerta claims that California needs to enact the California Values Act, Senate Bill 54 (SB 54), as a counterweight to Texas’s draconian law banning sanctuary cities in that state and President Donald Trump’s “xenophobic agenda to deport millions of people.”
I disagree.  While I can understand why Huerta dislikes Texas’s sanctuary city law, it is an exaggeration to call it “draconian.”  And Trump is just enforcing immigration provisions that were written by Congress and signed into law by previous presidents.  If those laws are xenophobic, the solution is to lobby Congress to change them.
Making California a sanctuary state will not stop Trump’s enforcement efforts.  But it would violate federal law and make California ineligible for certain types of federal grants.
Legislative Counsel’s Digest of SB 54.
SB 54 would repeal existing law which requires the police to notify U.S. Immigration and Customs Enforcement (ICE) when there is reason to believe that a person arrested for a violation of specified controlled substance provisions may be an alien.  
It would, with some exceptions, prohibit state and local law enforcement agencies from using their resources to investigate, detain, or arrest persons for immigration enforcement purposes.  
The law would direct the California Attorney General to publish model policies on limiting assistance with immigration enforcement and designated entities, such as state and local police, would be required to follow them.
It would encourage other entities that provide services related to physical or mental health and wellness, education, or access to justice, including the University of California, to adopt the model policies.
And the bill would require the Board of Parole Hearings and the Department of Corrections and Rehabilitation to notify ICE of the scheduled release of persons confined to state prisons for the conviction of a violent or serious felony.
SB 54 would violate federal law.
In 1996, Congress sought to end immigration related information-sharing restrictions with a provision in the Illegal Immigration Reform and Immigrant Responsibility Act.
The provision, 8 U.S.C. 1373, does not require state or local government entities to share immigration-related information with federal immigration authorities.  
It just provides that no person or agency may prohibit, or in any way restrict, a federal, state, or local government entity from doing any of the following with respect to information regarding the immigration status of any individual:

  • Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service (ICE);
  • Maintaining such information; or
  • Exchanging such information with any other federal, state, or local government entity.

Effort to ensure that state and local governments comply with 8 U.S.C. 1373.
Trump’s Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” requires the attorney general and the DHS secretary, to the extent consistent with law, to ensure that jurisdictions which willfully refuse to comply with 8 U.S.C. 1373 do not receive specified types of federal grants.
Attorney General Jeff Sessions implemented this provision on May 22, 2017, with a memorandum stating that the Department of Justice will require jurisdictions applying for certain types of department grants to certify their compliance with federal law, including 8 U.S.C. 1373.
SB 54 is not an effective way to help undocumented aliens.
The California bill would just withhold cooperation, and there are so many undocumented aliens living in California that ICE doesn’t need help to find them.  According to the PEW Research Center, California had 2,350,000 undocumented aliens in 2014.  It had more undocumented aliens than any other state, which can be attributed in part to California’s sanctuary policies.
To the extent that sanctuary practices draw undocumented aliens to a city or state, it makes it easier for ICE to find them.
ICE is sure to give priority to California when it implements the expanded expedited removal proceedings Trump authorized in his Executive Order, “Border Security and Immigration Enforcement Improvements.”
In expedited removal proceedings, undocumented aliens are deported without a hearing before an immigration judge if they cannot establish that they have been in the United States for two years, unless they can establish a credible fear of persecution.
A better way.
Chicago Mayor Rahm Emanuel found a better way to help.  He established a Legal Protection Fund for undocumented aliens living in Chicago.  
Once undocumented aliens are in expedited removal proceedings, they are subject to mandatory detention and cannot be represented by an attorney; but they can be helped by attorneys before they are in such proceedings.
When appropriate, attorneys can assist them in putting together the evidence they will need to establish that they have been in the United States for more than two years, or that they have a credible fear of persecution, if they find themselves in expedited removal proceedings.  
This would help many undocumented aliens without violating any federal law or making California ineligible for needed federal funds.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. 

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