Imaginary Dangers, Real Victims: A Lawyer and a Historian on the Real Facts about Trump’s Executive Order

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Donald Trump sees danger everywhere. They are the stabby Dreamer hiding a machete under her graduation gown. They include the Iranian family doctor ready to undermine America by over-prescribing pain killers. Most dangerous of all, the Syrian child promising to grow up and work for the lying mainstream media. Of course, Trump is not alone in blaming these people for the current state of America; many in fact do share his view of a dangerous world. What is striking about the moment is the willingness of the Executive to exercise his authority to directly and visibly take protections away and prosecute those he sees as a threat to the nation.

Trump’s travel ban regarding refugees and residents of seven countries has set off a series of protests and legal actions across the country. Executive orders are traditionally interpreted so as not to conflict with the Constitution, but apparently to make its intentions clear, the White House rejected a Department of Homeland Security interpretation that would have spared Legal Permanent Residents from the effects of the Entry Order. As of right now, the President has lost every single time the order was challenged in the courts. The willingness of courts, as well as other centers of authority to exert their power in this decentralized Federal republic will determine whether Trump’s dystopian view of the world becomes reality. As such things often start, Trump began by going after the most vulnerable in society, those with the fewest legal rights.

For a president whose support from the beginning rested on a promise to build a wall with Mexico and a willingness to characterize immigrants from that country as criminals and rapists, it is no surprise that many of his first actions are aimed at undocumented immigrants, and Mexicans specifically. While the wall is an affront to Latin America and one hundred and fifty years of border relations, it is the fate of the eleven million undocumented immigrants currently living in the United States that is of greatest concern. The vast majority of these people have now been in the country many years, almost all of them working, raising families, and generally contributing to their communities. It is for this reason that local officials in places where immigrants live have by and large come out strongly in their defense. In addition to building a wall, and growing an already large ICE police force, the president’s executive orders go after what are known as “sanctuary cities,” places that are not perceived as cooperating with immigration officers.

The Sanctuary Movement

Sanctuary cities go back to biblical times, where they were places where those accused of manslaughter could find refuge. The concept survived through the middle ages; churches came to be seen as places secular authorities could not enter. In nineteenth century America, localities in the North often refused to cooperate with the federal government and Southern states in capturing runaway slaves, which many saw as aiding an immoral system. However, it was the politics of the Cold War that gave the sanctuary movement its modern incarnation.

In the 1980s the United States supported a series of repressive governments in civil wars in Guatemala, El Salvador, and Nicaragua as part of the fight against the spread of Communism. Towards this goal, the United States perpetuated wars that displaced hundreds of thousands of people. Tens of thousands of these people ended up fleeing to the US, where they sought asylum. The Reagan administration fought their asylum claims on the dubious claim that they were “economic migrants” rather than refugees, and thus these people could not flee our allies. Courts generally sided with the administration and denied their claims.

Yet a movement arose within church communities to give refuge and protection to these refugees. Protestant and Catholic Churches gave physical sanctuary to migrants while fighting their legal battles and often taking them via an “underground railroad” to Canada where they could be granted asylum. Church “sanctuaries” do not have legal existence within the United States, something that the Immigration and Naturalization Service (now ICE) has pointed out on various occasions, yet the bad optics of arresting someone in a church kept the federal government from trying to enter them. The federal government prosecuted those who helped the asylum seekers, taking sixteen religious leaders to trial and convicting eight. In court the men and women religious defended their actions through Christian morality rather than legal justification and gained widespread public sympathy. They received suspended sentences or house arrest and as of today, no one has gone to jail for giving sanctuary to an undocumented immigrant.

Since 2000, a new sanctuary movement has arisen across the United States as church congregations have worked to shield other undocumented immigrants from deportation. Today churches are protected by an administrative order that labels them “sensitive locations” where ICE should reframe from arresting individuals. This administrative protection could be revoked at any moment. Oddly enough, it might be the lack of any ability to give actual legal sanctuary that gives today’s sanctuary churches more freedom of movement. Like their ancient and nineteenth-century counterparts, they appeal to what William Seward once called a “higher law,” and have crafted a moral framework that justifies civil disobedience. This willingness to protect people even if it is against the law may become critical in the years ahead.

Various institutions have pledged not to work with ICE and to protect the undocumented people in their community, including private corporations and most importantly college campuses across the country. Following Trump’s electoral college victory, tens of thousands of students have mobilized to petition and demand that their campuses protect students, especially those who have participated in the  Deferred Action for Childhood Arrivals program (DACA) from ICE. There are 750,000 young people that have come out of the shadows through former President Obama’s DACA initiative—thousands of whom are now students at colleges across the country, overcoming overwhelming odds, as legal rules deny access to financial aid to nearly all of them.

While the new administration has not ended DACA, it is expected to end the program or let it expire in the next few months, making these young people vulnerable to deportation again. Most campuses that have come out in support of their DACA students have said their campus police and administration would not work with ICE agents; indeed, this is the minimum they could do. More in keeping with the spirit of the sanctuary movement, others have said they would offer legal help for students facing deportation, not allow agents on campus without a warrant, or even offer physical sanctuary on campus. However, it must be remembered, none of this stops agents from being able to walk into a campus, arrest a student, and put them into deportation proceedings.

This inability to actually stop the machinery of the state is felt most acutely in cities and states. Modern sanctuary cities also date to the 1980s, though from a different lineage. In 1979 Los Angeles became the first police department to ban its officers from inquiring about a person’s legal status. This was meant as a measure to improve police-community relations. Throughout the 1980s several cities, mostly in California, followed in adopting similar measures. In 1996 Illegal Immigration Reform and Immigrant Responsibility Act greatly expanded penalties for undocumented immigration, cutting off avenues toward legalization and expanding the number of offenses that would be considered criminal. It also banned police and local governments from prohibiting officials from reporting the status of immigrants to federal agents. This limited the power of localities to offer sanctuary through legal prohibitions.

After 2009 ICE shifted from its previous strategy of workplace raids to using technology to go after undocumented immigrants through the Secure Communities Program. Presumably meant to target those who posed a danger to the community, the program integrated various databases and mandated that local law enforcement share information about arrests with ICE. The program was particularly well positioned to take advantage of the growth of the criminal justice system in the last few decades. A significant portion of the poor in the United States, especially minorities, have contact with the police for a variety of reasons. Under this program, when police arrested anyone they suspected of being in the country without documents, they were reported to ICE, who then would issue a detainer to hold the person until they were turned over to ICE. This meant that people were being detained when they were arrested, not convicted, and many of these arrests were for small offenses like broken tail lights, driving without a license, and other items that would never have been prosecuted. Police departments were turned into de-facto immigration agents.

Secure Communities, and a related program 287g, which made agreements between local police and ICE, became famous for the civil rights violations committed by the agencies that practiced them, notably Arizona’s Maricopa County, home of notoriously anti-immigrant Sheriff Joe Arpaio. Attempting to enforce immigration law requires police officers to articulate a reasonable –non-discriminatory- basis upon which to stop an individual suspected of violating the Immigration and Nationality Act. While it is theoretically possible to engage these programs without violating the Constitution-by only going after those with existing warrants, the history of these programs has shown that they are likely lead to widespread racial profiling. Deportations surged to more than 400,000 a year, most for non-violent crimes. Local governments and police departments saw this program as onerous, but also dangerous for public safety. People became afraid to talk to the police, even when they were victims of crime. It became impossible to get people to testify in court or even talk to police on the street. Rather than deporting criminals, the program was detrimental to public safety.

The program was amended in 2012 to target those with violent criminal records, and the number of deportations has subsequently dropped. Meanwhile, it is unclear if the program is constitutional. A Federal District Court in Oregon has ruled detainers to be unlawful stops under the Fourth Amendment, meaning that the vast majority of west-cost counties consider their usage to be unlawful while questions remain in the rest of the country. Sanctuary cities have argued that their local governments should not be turned into federal immigration officers, but they have never been able to offer actual refuge from deportation. ICE agents can and do go into these cities all the time to make arrests. In the last several years, immigration officers have taken to stationing themselves at court houses and going through the names of those in court to see if anyone is undocumented. They then arrest people as they enter or exist the court room. It is here where the expansion of the criminal justice system most hurts the undocumented, even when local police and governments refuse to cooperate.

Executive Order on Sanctuary Cities

Trump’s order on sanctuary cities disregards both the nuances of the law and the actual dangers posed by undocumented immigrants. While this war on sanctuary cities is not unexpected, the definition of sanctuary cities in Trump’s Order completely miss the intended target.

No “sanctuary policy” in any city that we are aware of violates the law that they are accusing these cities of violating, 8 U.S.C. §1373. That law essentially stops cities from imposing gag orders on their employees and departments from speaking to the federal government when they knowledge of someone’s unlawful status. As far as we can tell, no city stops their employees or agencies from passing such information. What sanctuary cities do is decline participation in immigration enforcement, offer services on a non-discriminatory basis, refuse to detain persons for ICE, avoid affirmatively collecting information about immigration status, and decline to enforce the civil provisions of the Immigration and Nationality Act. As one city official told me, “we can’t withhold what we don’t collect.”

There are very good reasons why sanctuary cities choose to engage in practices that make them welcome to immigrants. Some of them do not enforce ICE detainers because they sincerely believe that it is a violation of the Fourth Amendment. Others see it as good for business and creating more trust between local officers and the community. Cities that have adopted sanctuary policies have done so while observing their legal obligations.

What is more troubling, however, is the discretionary authority of the Department of Justice. Under the same Order the Attorney General is asked to “designate” sanctuary cities, to list them, and to consider not giving them federal grants. While it is unknown how far newly appointed Attorney General Jeff Sessions and the DOJ will go outside of the strict definition of 8 U.S.C. §1373, there is a clear expectation from many large cities that they will face reductions in grants. The administration is threatening to withhold all federal funds from such jurisdictions, and some states, such as Texas, are already moving to do so against Austin. Some municipalities are gearing up for Tenth Amendment litigation, which most legal observers believe will favor the cities.

By whatever name one chooses to use, sanctuary cities are safer communities. There is ample evidence that these policies reduce crime and increase community trust and collaboration. In a society that has spent the last two years heavily debating the relationship between police and people of color, these policies give departments a much-needed tool to build trust. As a lawyer whose clients are Trafficking and Crime Victim (U) visa recipients, I know that there are many victims and witnesses who would not participate in investigations and court-activities if it were not for immigrant-friendly policies in the courts and police departments.

What is surprising is that the Order seems to assume that being immigrant friendly creates real dangers for the rest of society. It orders the Department of Justice to collect and publish the names of undocumented persons who have committed crimes. Although immigration does not lead to more crime and immigrants are incarcerated at lower rates than the population, the singling out of this group’s crimes will place a spotlight on them and likely associate immigrants as criminals.  Further, like the anecdotes of violence committed by immigrants during last year’s Republican National Convention, these stories will inflame the public’s suspicion toward the undocumented.

That is the true enemy he seeks to attack, the supposedly criminal classes known as the undocumented. Along with these new priorities, the Order brings back two very controversial aspects of President Bush’s immigration toolkit: secure communities and 287g. These and other “ICE Access” programs give cities legal authority to enforce the civil provisions of the INA. Inside the Order were also new priorities for the Department of Homeland Security. It essentially changed to priority status nearly any undocumented immigrant who has been so much as accused of a crime. This differs drastically from the Obama administration’s priority orders, which were basically for those who have committed serious crimes and been convicted.

In fact, the definition is so broad that nearly every undocumented person in the United States is liable to be deported as a “criminal,” including DACA recipients. What this means is that should a person become ensnarled in the immigration system, it will be much harder to prevent their deportation by simply convincing the government not to prioritize them. This has already started to happen. Guadalupe García de Rayos was arrested and deported in Arizona after she showed up for a routine appointment with ICE. She is a mother of two citizens who has been in the US since she was 14, yet is being deported for the criminal offense of using false papers to work, a minor crime that ICE had stopped deporting people for to focus on violent offenders. It is much easier for ICE to target hard working undocumented immigrants who live and work in the open than to go after those who pose a real threat to the community. This will mean stepped up attempts to identify and detain people through the court system.

So far the Order does not mandate that police programs participate—only that they can participate if they wish, so the divergence between immigrant-friendly and hostile communities will likely get larger. This will make all of us less safe. Latinos are some of the most highly-mobile members of society. The people I represent, migrant farm workers, can live in up to a dozen localities throughout the year. This can include immigrant-friendly places in California and very hostile locations in Indiana. A typical migrant will not be able to distinguish between the policies in one city and those in another city when considering whether to report a crime, labor violation, or a bad landlord. He or she will only understand the bottom line: you cannot trust the authorities. I fully expect trust to deteriorate between immigrant communities and local law enforcement over the next four years.

The language within the Executive Orders ground their authority on preserving public safety, but the language coming from the President himself is more revealing. Like the Entry Order, there is a conflation between the threat posed by a tiny few with an entire population, and even entire ethnic or racial groups. The merging of legal immigrants, refugees, undocumented immigrants, DACA recipients, and criminals in the President’s public and private statements hints at a broader attack against all immigration. The conflation of these terms is dangerous and serves to de-legitimize the presence of such people in the country, whether they are “documented” or not. Drafts of proposed Executive Orders would not only go after the undocumented, but legal citizens. It would make any immigrant who used public services liable to be deported, even though half of Americans receive some sort of government assistance, and with wording so broad that nearly any service could be considered in its purview. The proposed order would drastically increase the power of immigration agents to deny legal entry to those who might become a “public charge,” a highly subjective standard that have been rife with class and racial discrimination in the past.

Large-scale raids have already started across the country, even in sanctuary cities such as Los Angeles. Their status is not stopping ICE. As of now there are five states, 39 cities, and 365 counties that have declined to comply with ICE detainer requests, a rudimentary list of “sanctuaries.” Some of these states, cities, and counties are gearing up to legally challenge the Trump Administration and Department of Homeland Security. Additionally, police departments, legal organizations, and NGOs are expected to fight the Executive Orders. These sub-federal levels of power are acting within their authority and for the most part take care to fulfill their legal obligations to the Federal Government while fighting those that they believe to be unconstitutional. So far courts have shown themselves willing to question the Administration, but the legal war is only just now starting.

For those who see undocumented immigrants as hard working people with families who want to be Americans, rather than as criminals to be deported, there may come a time when they have to choose between the law and their beliefs. After a Federal District Court blocked the Travel Ban, the President not only criticized the decision, but the judge himself and his commitment to the Constitution, attacking the legitimacy of the courts and their role in governing. Executive agencies may ignore judicial rulings, as frequently happened in the chaotic days after the Travel Ban. The Administration may also succeed in court, in Congress, and in state legislatures, where Republicans hold large majorities. At that point, protecting people from deportation will mean civil disobedience. The Christian church-based sanctuary movement may then become the model. Both Protestant and Catholic groups are already organizing to defy the law. It will mean people sleeping in sanctuary buildings, going from safe house to safe house, and even for secular people, publicly proclaiming a moral language independent of secular law.

Daniel Morales, PhD, is a Visiting Scholar at the American Academy of Arts and Sciences. David Morales, JD, is an attorney in Yakima, Washington State.

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