Mayorkas urges more local cooperation as jurisdictions weigh their role—01-28-22

Immigration news, in context

This is the 110th edition of BORDER/LINES, a weekly newsletter by Felipe De La Hoz and Gaby Del Valle designed to get you up to speed on the big developments in immigration policy. Reach out with feedback, suggestions, tips, and ideas at BorderLines.News@protonmail.ch.

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This week’s edition:

• In The Big Picture, we examine DHS Secretary Mayorkas’s recent claims about sanctuary jurisdictions’ refusal to cooperate with ICE and local officials’ shifting approaches.

• In Under the Radar, we discuss the rise in crossings via the U.S.-Canada border.

• In Next Destination, we look into the Biden administration’s proposed plan to quickly resettle Afghan refugees currently living in Qatar.

The Big Picture

The news: Homeland Security Secretary Ali Mayorkas implored mayors of sanctuary cities to increase their cooperation with immigration enforcement, while local officials around the country ponder their role and responsibilities one year into the Biden administration.

What’s happening?

Last week, Mayorkas delivered remarks to the U.S. Conference of Mayors’ 90th winter meeting in Washington, D.C., where he spoke to dozens of mayors from the country’s largest cities about topics including cybersecurity, domestic extremism, and yes, immigration. On that front, he skirted around the big media issue, the southern border, and focused on internal enforcement, asking mayors with so-called sanctuary policies to reevaluate their stances, claiming that ICE’s new enforcement guidelines enhanced “justice and fairness and equity” to the point that it was just logical to collaborate.

The concept of a sanctuary jurisdiction is a fuzzy one, and can somewhat come down to the eye of the beholder, but at base it means a state or locality that has provisions in place to prohibit some or all active cooperation in civil immigration enforcement. The term is sometimes falsely described as defining a jurisdiction that actually prevents or interferes with immigration enforcement, but this would of course be illegal, in much the same way that it would be unlawful for a state or city to disrupt any other federal law enforcement operation, like IRS enforcement or an FBI investigation.

There are some forms of cooperation that are involuntary. Arrest records in particular are uniformly sent to federal databases that can alert immigration authorities, and cities do not have the ability to opt out. Sanctuary policies don’t refer to this, but to the types of cooperation that are optional; for example, a jurisdiction can refuse to keep people in criminal detention past their release dates or inquire about immigration status during other routine business.

The concept of a sanctuary jurisdiction goes back decades, but became supercharged during the Trump era, when local leaders found it morally necessary (and often politically advantageous) to embrace the sanctuary movement (more on this below). In practice, city leaders opting for this type of noncooperation was the only thing that kept ICE arrest numbers from surging to unprecedented levels during what was the most openly anti-immigrant administration in decades. These are the leaders Mayorkas was speaking to here.

“What I want to communicate to you is that… ICE, the agency of today and what it is focused upon, and what it is doing, is not the agency of the past,” Mayorkas said. “So, I will be coming to you and asking you to reconsider your position of non-cooperation and see how we can work together. And I may not succeed initially in a wholesale reversal of your position, but I am willing to work in increments with you because the public’s safety, the public's well-being, for which we are all charged, is I think at issue.”

This isn’t exactly a shocker. For all the early Biden administration talk of having a clean break with the Trump administration’s immigration approach, at the end of the day Mayorkas is overseeing a department for which a foundational and explicit function is to arrest, detain, and deport immigrants. The Biden administration might have a different set of priorities than its predecessor, but it ultimately wants as many tools at its disposal as possible to fulfill that mission. Mayorkas is certainly no Chad Wolf, but he’s not a heart-on-his-sleeve progressive on either. As we wrote last year, early on in the job he met with ICE personnel and outlined a vision that involved confronting sanctuary cities and increasing criminal prosecutions for border crossings.

Around the country, local elected officials and law enforcement are indeed having conversations about how to engage with immigration enforcement agencies in a post-Trump period, when at least the perception of an indiscriminate and cruel targeting of immigrants has dissipated. Constituencies aren’t demanding noncooperation as much as they once were, and officials like Mayorkas are promising targeted, practical enforcement focusing on “criminals,” a resonant message as communities around the country fret over a perceived surge in crime.

The impact of these choices at a community level is enormous. In Georgia, the newly elected sheriffs of Gwinnett and Cobb counties ended their participation in the 287(g) program once they took office last January. As we’ve mentioned before, 287(g) is one of the most direct ways that a locality can participate in immigration enforcement, by essentially deputizing local law enforcement as federal immigration officers who can question suspected immigration violators, directly alert federal authorities, and keep them detained for longer as ICE arranges to pick them up.

As laid out in a recent Atlanta Journal-Constitution story, pulling out of the programs had immediate, material impact on the local population. This is not just because the threat of police contact leading directly to deportation dissipated somewhat—though obviously that’s significant—but the specter of local authorities’ entanglement with ICE permeates everything. Immigrant communities won’t seek out medical attention, or report things like domestic violence to the police, or even risk going out in public as much if there’s even the inkling that their own local or state government might be in league with the deportation apparatus. It’s this knock-on impact in particular that might act as an impediment to officials abandoning sanctuary policies.

Of course, there are places going in the opposite direction. In Florida, a State Senate committee this week advanced legislation that would actually mandate that all sheriffs enroll in 287(g) (though most already do), as well as prohibit state entities from doing business with any company that’s engaged in the transport of undocumented immigrants and asylum seekers, which in practice could affect bus companies and others providing corollary services like security and food. In New Hampshire, GOP members of the State House of Representatives are pushing a bill that would prevent any local officials from adopting any sanctuary policies whatsoever.

How we got here

Last April, a few months into Biden’s term, Mayorkasmet held a town hall forum with ICE employees. The details of that meeting, obtained by the Washington Times, suggested that the Biden administration would eventually take a tougher stance on interior enforcement. During the meeting, Mayorkas expressed frustration with so-called “sanctuary” jurisdictions, saying that dealing with jurisdictions with “blanket policies” of not working with ICE would be one of his “significant priorities.” 

The Biden administration appears to be taking more of a carrot than a stick approach compared to its predecessor with regards to sanctuary jurisdictions. The Trump administration repeatedly threatened to withhold federal funding from any cities that refused to cooperate with ICE or other federal immigration agencies. In 2017, the Department of Justice—led at the time by Jeff Sessions—began requiring jurisdictions that received Justice Assistance Grant (JAG) grants, which provide federal criminal justice funding to local and state governments,, to cooperate with federal immigration agencies. All JAG recipients for that fiscal year had to comply with 8 U.S. Code § 1373, a statute limiting restrictions between local/state governments and DHS; allow DHS staff to access detention facilities “in order to meet with an alien and inquire as to his or her right to be or remain'' in the country; and give DHS at least 48 hours notice whenever they were going to release anyone in its custody who immigration agents have asked about. Several jurisdictions, including New Jersey and Colorado, sued the federal government over these requirements. Colorado won its lawsuit in 2020 after a federal judge ruled that DOJ had to give the state its 2018 JAG funding, which had previously been withheld. 

Interest in—and opposition to—sanctuary cities took off just after Trump got elected, but the concept predates the Trump era by several decades. The sanctuary movement began in the 1980s, not as a solely political cause but as a religious one. In 1982, the Southside Presbyterian Church in Tucson, Arizona declared itself a “sanctuary” for asylum seekers and other migrants from Central America. The U.S. was facing a rise in immigration from Guatemala and El Salvador at the time, with tens of thousands of people fleeing civil conflicts in both countries. But when those migrants applied for asylum in the U.S., their petitions were largely denied, condemning them to deportation. Churches and other places of worship began to declare themselves sanctuaries for the undocumented—places immigration agents could not infiltrate. (To this day, ICE policy prohibits agents from arresting people at “sensitive locations” including places of worship.)

Unlike the faith-based sanctuary movement, sanctuary cities do not and cannot try to shield non-citizens from deportation or other forms of immigration enforcement. There isn’t a single city in the United States where law enforcement doesn’t cooperate with ICE to some degree. 

In 2008, the Bush administration introduced Secure Communities, a pilot program designed to increase collaboration between local law enforcement agencies and ICE, an agency established just five years prior. Under Secure Communities, the fingerprints and other biometric information of anyone booked into a participating local jail were sent to a federal database that ICE could access. The goal was to identify people who were potentially eligible for deportation and, if they were deemed a priority, to ask the local law enforcement agency to place a detainer on those people so ICE could take them into its custody. 

The Obama administration expanded Secure Communities for several years, enrolling new jurisdictions into the program. But in 2014, then-DHS Secretary Jeh Johnson announced that Secure Communities would be replaced with the Priority Enforcement Program. PEP was similar to Secure Communities but more limited in scope. Unlike Secure Communities, PEP was not supposed to facilitate the arrests of undocumented people who had not been charged with a crime or of anyone who had been charged with a crime but hadn’t been convicted. The Trump administration ended PEP and revived Secure Communities, and Biden has kept it in place.

Participating in Secure Communities isn’t a choice; even so-called sanctuary jurisdictions have to share this information with ICE. But there are other measures cities and counties can take to limit cooperation with federal immigration agencies—or, conversely, to collaborate further.

Since 1996, local police departments and sheriff’s offices have been able to join the 287(g) program, a partnership with federal immigration agencies. Under 287(g), local law enforcement agencies effectively act as deputies for ICE. The initial program took three forms: a task force model, a jail enforcement model, and a hybrid model. The jail model allowed local law enforcement agencies to question people in their custody in order to determine whether they were in violation of immigration law. It’s essentially a more direct version of Secure Communities that relies on individual screening and questioning, with the added function of keeping people physically in detention past what would be their normal release dates.

The more controversial task force model gave officers the power to question people they encountered in the course of their duties—e.g., during traffic stops or out on the street—to determine whether they were in the country legally. The hybrid model combined elements of both. The Obama administration ended the task force model in 2012 after numerous concerns over racial profiling and civil rights violations.

The Trump administration attempted to expand 287(g), encouraging local law enforcement agencies to enroll in the program, or in the related Warrant Service Officer program, which launched in 2019. Under Trump, 287(g) became more politicized than before: sheriffs in conservative counties flocked to the program, but there were also a number of newly elected sheriffs in more liberal areas who ran on platforms of ending their county’s participation in the program, or refusing to join it altogether.

What’s next?

It seems like we’re at something of an inflection point where city and state leaders around the country are weighing their options with regards to immigration enforcement in their jurisdictions. Many new legislators and executives have taken office at the start of the year, and everyone feels like they have a sense of the Biden administration’s approach. While there has been incessant controversy over his border policies and refugee admissions, especially following the Afghan withdrawal fiasco, there’s been considerably less attention paid to internal enforcement. That may be changing now.

Particularly as we approach the midterms, two of the easiest and most potent narratives to wield as a weapon against Biden and the Democrats are soft on crime and open borders, and expect them both to combine into accusations that local officials are acting in tandem with the administration to let criminals run rampant through city streets or whatever. This might give measures like those proposed in Florida and New Hampshire a boost.

One thing we didn’t discuss much here but have talked about at length before are state efforts to actually supplant federal law enforcement, particular Texas Gov. Greg Abbott’s farcical Operation Lone Star, which deployed state law enforcement personnel and National Guard troops to the border to essentially mimic border enforcement, and which has been an operational, legal, and moral failure. Still, it was never meant to accomplish much beyond acting as a sort of campaign ad and political platform, and it’s not inconceivable that plenty of other states will ramp this up; in fact, various other states had already “detailed” law enforcement to Texas for this operation.

Under the Radar

Asylum seekers increasingly headed towards U.S.-Canada border

The number of migrants crossing into Canada via the U.S.’s northern border is on the rise, according to the Associated Press. Since November, when the Canadian government began allowing migrants to file asylum claims between ports of entry for the first time since the COVID-19 pandemic began in 2020, there has been an increase in migrants crossing the Canadian border. 

The U.S. and Canada have a safe third country agreement, which requires people to apply for asylum or refugee status in whichever of the two countries they enter first, but there are several exceptions. Most importantly, the agreement only applies to people who cross at official ports of entry—the migrants the AP reported on are crossing between ports of entry. There are also exceptions for people who have family connections in Canada, for unaccompanied minors, and for people from certain countries, including Afghanistan, Haiti, and Iraq. 

Next Destination

Biden administration may expedite resettlement for Afghan refugees

The Department of Homeland Security, the State Department, and the White House are working on a plan to quickly process thousands of Afghan refugees who are currently in Qatar, Axios reports. The administration reportedly studied the way Syrian refugees’ resettlement was fast-tracked in 2016 under the Obama administration, and is hoping to introduce a similar streamlined program for Afghan refugees. The administration hopes to implement a 30-day process for Afghan refugees currently in Qatar, and is also reportedly exploring 90-day and 120-day processes.

The majority of Afghan refugees currently in the U.S. entered the country through a process called humanitarian parole, which does not grant them permanent status. Tens of thousands of refugees admitted into the U.S. through parole were initially sent to live on military bases before being integrated into communities across the country. Despite being let into the U.S., however, Afghans who entered the country via parole still have to apply for permanent legal status.