State and Local "Sanctuary" Policies Limiting Participation in Immigration Enforcement

Congressional research reportJul 10, 2015

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State and Local “Sanctuary” Policies Limiting

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R43457

State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

Summary

While the power to prescribe rules as to which aliens may enter the United States and which

aliens may be removed resides solely with the federal government, the impact of alien

migration—whether lawful or unlawful—is arguably felt most directly in the communities where

aliens settle. State and local responses to unlawfully present aliens within their jurisdictions have

varied considerably, particularly as to the role that state and local police should play in enforcing

federal immigration law. Some states, cities, and other municipalities have sought to play an

active role in immigration enforcement efforts. However, others have been unwilling to assist the

federal government in enforcing measures that distinguish between residents with legal

immigration status and those who lack authorization under federal law to be present in the United

States. In some circumstances, these jurisdictions have actively opposed federal immigration

authorities’ efforts to identity and remove certain unlawfully present aliens within their

jurisdictions.

Although state and local restrictions on cooperation with federal immigration enforcement efforts

have existed for decades, there has reportedly been an upswing in the adoption of these measures

in recent years. Moreover, the nature of these restrictions has evolved over time, particularly in

response to recent federal immigration enforcement initiatives like Secure Communities

(subsequently replaced by the Priority Enforcement Program), which enable federal authorities to

more easily identify removable aliens in state or local custody. Entities that have adopted such

policies are sometimes referred to as “sanctuary” jurisdictions, though there is not necessarily a

consensus as to the meaning of this term or its application to a particular state or locality. Recent

reports that an alien who shot and killed a woman, after being released by San Francisco

authorities who had declined to honor an immigration detainer issued by federal authorities, have

brought increased attention to state and local practices of declining to honor such detainers, as

well as “sanctuary” policies more generally.

This report discusses legal issues related to state and local measures that limit law enforcement

cooperation with federal immigration authorities. The report begins by providing a brief overview

of the constitutional principles informing the relationship between federal immigration authorities

and state and local jurisdictions, including the federal government’s power to preempt state and

local activities under the Supremacy Clause, and the Tenth Amendment’s proscription against

Congress directly “commandeering” the states to administer a federally enacted regulatory

scheme.

The report then discusses various types of measures adopted or considered by states and localities

to limit their participation in federal immigration enforcement efforts, including (1) limiting

police investigations into the immigration status of persons with whom they come in contact; (2)

declining to honor federal immigration authorities’ requests that certain aliens be held until those

authorities may assume custody; (3) shielding certain unlawfully present aliens from detection by

federal immigration authorities; and (4) amending or applying state criminal laws so as to reduce

or eliminate the immigration consequences that might result from an alien’s criminal conviction.

For discussion of legal issues raised by states and localities seeking to play an active role in

enforcing federal immigration law, see CRS Report R41423, Authority of State and Local Police

to Enforce Federal Immigration Law, by (name redacted) and (name redacted).

Congressional Research Service

State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

Contents

Introduction...................................................................................................................................... 1

Legal Background ............................................................................................................................ 2

Select State and Local Limitations on Immigration Enforcement Activity ..................................... 7

Traditional “Sanctuary” Policies ............................................................................................... 7

Limiting Arrests for Federal Immigration Violations .......................................................... 8

Limiting Information-Sharing with Federal Immigration Authorities ................................ 9

Limiting Police Inquiries into Persons’ Immigration Status ............................................. 12

Declining to Honor Immigration Detainers ............................................................................. 13

Shielding Unlawfully Present Juveniles from Federal Detection ............................................ 17

Modifying Criminal Sentences to Avoid Immigration Consequences..................................... 19

Contacts

Author Contact Information........................................................................................................... 20

Congressional Research Service

State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

Introduction

While the power to prescribe rules as to which aliens may enter the United States and which

aliens may be removed resides solely with the federal government,1 the impact of alien

migration—whether lawful or unlawful—is arguably felt most directly in the communities where

aliens settle. State and local responses to unlawfully present aliens within their jurisdictions have

varied considerably, particularly as to the role that state and local police should play in enforcing

federal immigration law.

At one end of the spectrum, some states and localities have actively sought to deter unlawfully

present aliens from settling within their jurisdictions, including by assisting federal immigration

authorities in identifying and apprehending such aliens for purposes of removal. In some cases,

this has involved state and local participation in federally coordinated immigration enforcement

programs.2 In recent years, some states and localities have attempted to play an even greater role

in the area of immigration enforcement, in many cases due to perceptions that federal efforts have

been inadequate. Some have adopted measures that criminally sanction conduct believed to

facilitate the presence of unlawfully present aliens, and have also instructed police to actively

work to detect such aliens as part of their regular duties. The adoption of such measures has

waned considerably, however, in the aftermath of the 2012 Supreme Court ruling in Arizona v.

United States, where the Court held that many of the provisions of one such enactment, Arizona’s

S.B. 1070, were facially preempted by federal immigration law.3

At the other end of the spectrum, some states and localities have been unwilling to assist the

federal government’s enforcement of measures that distinguish between those residents with legal

immigration status and those who lack authorization under federal law to be present in the United

States. In some instances, these jurisdictions have adopted measures that seek to thwart federal

efforts to identify and apprehend unlawfully present aliens within the state or locality’s

jurisdiction.

See, e.g., Arizona v. United States, 132 S. Ct. 2492, 2497 (2012) (“The Government of the United States has broad,

undoubted power over the subject of immigration and the status of aliens.”); De Canas v. Bica, 424 U.S. 351, 354

(1976) (“Power to regulate immigration is unquestionably exclusively a federal power.”); Kleindienst v. Mandel, 408

U.S. 753, 767 (1972) (Congress has “plenary power to make rules for the admission of aliens and to exclude those who

possess those characteristics which Congress has forbidden”) (internal citations omitted); Takahashi v. Fish and Game

Commission, 334 U.S. 410, 416 (1948) (“The authority to control immigration—to admit or exclude aliens—is vested

solely in the Federal government.”); Oceanic Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909) (“over no

conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens into the

United States).

Perhaps most notably, under §287(g) of the Immigration and Nationality Act (INA), the Department of Homeland

Security (DHS) is authorized to enter written agreements with state and local jurisdictions that enable specially trained

state or local officers to perform specific functions relative to the investigation, apprehension, or detention of aliens,

during a predetermined time frame and under federal supervision. 8 U.S.C. §1357(g). For further discussion of state

and local participation in the federal government’s immigration enforcement efforts, see CRS Report R41423,

Authority of State and Local Police to Enforce Federal Immigration Law, by (name redacted) and (name re

dacted), and CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by (name

redacted) and (name redacted).

Arizona v. United States, 132 S.Ct. 2492 (2012). See also CRS Report R42719, Arizona v. United States: A Limited

Role for States in Immigration Enforcement, by (name redacted) and (name redacted), and CRS Legal Sidebar

WSLG96, Arizona v. United States: Some Immediate Takeaways, by (name redacted).

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

While state and local restrictions on cooperation in federal immigration enforcement efforts have

existed for decades, there has been an upswing in the adoption of these measures in recent years.4

Moreover, the nature of these restrictions has evolved over time, particularly in response to recent

federal immigration enforcement initiatives like Secure Communities (subsequently replaced by

the Priority Enforcement Program (PEP), as discussed below), which enable federal authorities to

more easily identify potentially removable aliens in state or local custody.

This report discusses legal issues related to state and local measures limiting law enforcement

cooperation with federal immigration authorities. It begins by providing a brief overview of

constitutional principles informing the relationship between federal immigration authorities and

state and local jurisdictions. The report then discusses various types of measures adopted or

considered by states and localities to limit their participation with federal immigration

enforcement efforts, including (1) limiting police investigations into the immigration status of

persons with whom they come in contact; (2) declining to honor federal immigration authorities’

requests that certain aliens be held until those authorities may assume custody; (3) shielding

certain unlawfully present aliens from detection by federal immigration authorities; and (4)

amending or applying state criminal laws so as to reduce or eliminate the immigration

consequences that might result from an alien’s criminal conviction.

Legal Background

Pursuant to its “broad, undoubted power over the subject of immigration and the status of

aliens,”5 the federal government has established an “extensive and complex” set of rules

governing the admission and removal of aliens, along with conditions for aliens’ continued

presence within the United States.6 These rules are primarily contained in the Immigration and

Nationality Act of 1952, as amended (INA).7 The INA supplements these rules through an

enforcement regime that contains criminal and civil provisions, which sometimes sanction similar

See National Council of State Legislatures, 2014 Immigration Report (Jan. 2015), available at

http://www.ncsl.org/research/immigration/2014-immigration-report.aspx (hereinafter “NCSL Immigration Report”);

National Immigration Law Center, Inclusive Policies Advance Dramatically in the States (Oct. 2013), available at

http://www.nilc.org/document.html?id=963; Federation for American Immigration Reform, Sanctuary Policies Across

the U.S. (Oct. 2013) (identifying and providing links to various state and local enactments and policies restricting

involvement in immigration enforcement activity), available at http://www.fairus.org/DocServer/

amnesty_2013_debate/Sanctuary_Policies_Across_the_US_110513.pdf (hereinafter “FAIR Compilation of State and

Local Restrictions”). See also Center for Immigration Studies, Map: Sanctuary Cities, Counties and State (July 2015)

(interactive map identifying states, counties, and municipalities that limit the honoring of immigration detainer

requests) (hereinafter “CIS Map of Jurisdictions which Restrict the Honoring of Immigration Detainers”).

Arizona, 132 S. Ct. at 2497. See also supra footnote 1 (citing several Supreme Court cases recognizing exclusive

federal power over immigration). Federal authority over immigration derives from multiple sources. The Constitution

provides Congress with the authority “[t]o regulate Commerce with foreign Nations,” and “[t]o establish an uniform

Rule of Naturalization.” U.S. CONST., Art. I, §8, cl. 3-4. Federal authority to regulate the admission and presence of

aliens also derives from its authority over foreign affairs. See Toll v. Moreno, 458 U.S. 1, 10 (1982) (discussing various

constitutional provisions, as well as authority over foreign affairs, which may serve as a source for immigration

regulation by the federal government); Arizona, 132 S. Ct. at 2498 (2012) (similar, and also stating that “[i]mmigration

policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions

and expectations of aliens in this country who seek the full protection of its laws”); Kleindienst, 408 U.S. at 767

(discussing Congress’s plenary authority to make rules for admission of aliens).

Arizona, 132 S.Ct. at 2497.

8 U.S.C. §§1101, et seq.

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

conduct.8 The courts have consistently recognized that the removal of aliens from the United

States for violating the terms of their admission or continued presence in the country is a civil

action, rather than a criminal sanction, because the main purpose is not to punish wrongdoing but

to end a continuing violation of the nation’s immigration laws.9

While the federal government’s authority over immigration is well established, the Supreme

Court has recognized that not “every state enactment which in any way deals with aliens is a

regulation of immigration and thus per se preempted” by the federal government’s exclusive

power over immigration.10 The Tenth Amendment provides that powers “not delegated to the

United States by the Constitution, nor prohibited by it to the states, are reserved to the states

respectively, or to the people.”11 Among the powers reserved to the states are traditional “police

powers” concerning the promotion and regulation of safety, health, welfare, and economic

activity within the state’s jurisdiction.12 Pursuant to the exercise of these powers, states and

municipalities have frequently enacted measures which, directly or indirectly, address aliens

residing in their communities.13

The exercise of state police powers may be circumscribed by lawful assertions of federal

authority. The Supremacy Clause of the Constitution establishes that federal law, treaties, and the

Constitution itself are “the supreme Law of the Land.”14 Accordingly, states and localities may be

precluded from taking actions that are “preempted” by federal law, even if such actions are

otherwise valid exercises of their police powers.15 An act of Congress may preempt state or local

For a brief discussion of immigration-related crimes, see CRS Legal Sidebar WSLG563, An Overview of

Immigration-Related Crimes, by (name redacted).

Padilla v. Kentucky, 559 U.S. 356, 365 (2010) (“We have long recognized that deportation is a particularly severe

‘penalty,’ but it is not, in a strict sense, a criminal sanction.”) (internal quotations and citations omitted); INS v. LopezMendoza, 468 U.S. 1032, 1038-39 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to

remain in this country, not to punish an unlawful entry.... The purpose of deportation is not to punish past

transgressions but rather to put an end to a continuing violation of the immigration laws.”).

De Canas v. Bica, 424 U.S. at 355 (1976) (holding that state law regulating employment of unauthorized aliens was

not preempted by federal law, in a case decided prior to the INA being amended to comprehensively regulate alien

employment and expressly preempting most state sanctions upon unauthorized alien employment). See also, e.g.,

Arizona, 132 S. Ct. at 2507-2511 (while finding many provisions of state immigration enforcement law were

preempted, rejecting facial preemption challenge to provision requiring police to verify immigration status of lawfully

stopped persons who were suspected of unlawful status); Chamber of Commerce of the United States v. Whiting, 131

S. Ct. 1968 (2011) (holding that federal law did not preempt a state measure that authorized or required the suspension

or termination of the licenses of businesses that knowingly or intentionally hire unauthorized aliens); Lopez-Valenzuela

v. County of Maricopa, 719 F.3d 1054 (9th Cir. 2013) (upholding state law barring state courts from setting bail for

unlawfully present aliens charged with certain felony offenses).

U.S. CONST., amend. X.

Western Turf Ass’n v. Greenberg, 204 U.S. 359, 363 (1907) (“Decisions of this court ... recognize the possession, by

each state, of powers never surrendered to the general government; which powers the state, except as restrained by its

own Constitution or the Constitution of the United States, may exert not only for the public health, the public morals,

and the public safety, but for the general or common good, for the well-being, comfort, and good order of the people.”);

Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919) (“That the United States lacks the

police power, and that this was reserved to the states by the Tenth Amendment, is true.”). See also Kelley v. Johnson,

425 U.S. 238, 247 (1976) (“The promotion of safety of persons and property is unquestionably at the core of the State’s

police power....”).

See supra footnote 10 (citing illustrative cases where state or local measures addressing unlawfully present aliens

were upheld against preemption challenges); NCSL Immigration Report, supra footnote 4 (discussing legislation

enacted by states in 2013 concerning non-U.S. citizens).

U.S. CONST., art. VI, cl. 2.

Conversely, the federal government’s exertion of its constitutional authority over a matter is permissible even if it

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

action in one of three ways: (1) the statute expressly indicates its preemptive intent (express

preemption); (2) Congress intended to wholly occupy the regulatory field, thereby implicitly

precluding supplemental action by a state or local government in that area (field preemption); or

(3) state or local action conflicts with or otherwise frustrates the purpose of the federal scheme

(conflict preemption).16 Congressional intent is paramount in the analysis as to whether federal

law preempts state or local activity. However, courts’ preemption analysis generally begins with

the “assumption that the historic police powers of the States were not to be superseded by the

Federal Act unless that was the clear and manifest purpose of Congress.”17

Acting pursuant to its authority over immigration, the federal government has expressly or

impliedly preempted a range of state and local activities that potentially undermine or conflict

with federal immigration enforcement policies. Of particular relevance to this report, pursuant to

§434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996

(PRWORA, P.L. 104-193) and §642 of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA, P.L. 104-208, Div. C), Congress has preempted state or

municipal measures that bar the exchange of information relating to persons’ immigration status

with federal, state, or local authorities.

While the federal government’s power to preempt activity in the area of immigration is extensive,

there are constitutional limits to its power to influence state and local activity. Notably, it may not

directly “commandeer” state or local governments into the service of federal immigration

authorities.18 The anti-commandeering doctrine was most prominently defined by the Supreme

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targets activities that might also be regulated by a state under its traditional police powers. Kentucky Distilleries &

Warehouse Co., 251 U.S. at 156 (“[W]hen the United States exerts any of the powers conferred upon it by the

Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents

which attend the exercise by a state of its police power, or that it may tend to accomplish a similar purpose.”); Hodel v.

Virginia Surface Min. and Reclamation Ass’n, Inc., 452 U.S. 264, 291 (1981) (“The Court long ago rejected the

suggestion that Congress invades areas reserved to the States by the Tenth Amendment simply because it exercises its

authority under the Commerce Clause in a manner that displaces the States’ exercise of their police powers.”).

Arizona, 132 S. Ct. at 2500-01 (citing, e.g., Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011); Crosby v.

National Foreign Trade Council, 530 U.S. 363 (2000); Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132

(1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)).

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). See also Wyeth v. Levine, 555 U.S. 555, 565 (2009) (similar).

However, in some recent cases, the Court did not deem a presumption against preemption to be applicable in the matter

before it. See, e.g., Arizona v. Inter Tribal Council of Ariz., Inc., 133 S. Ct. 2247 (2013) (holding that the presumption

against preemption does not apply in Election Clause cases); Tarrant Reg’l Water Dist. v. Herrmann, 133 S. Ct. 2120,

2132 (2013) (“There is, however, one interpretive tool that is inapplicable [with respect to interstate compacts]: the

presumption against pre-emption.”); Cuomo v. Clearing House Ass’n, L.L.C., 557 U.S. 519, 534 (2009) (“We have not

invoked the presumption against pre-emption, and think it unnecessary to do so in giving force to the plain terms of the

National Bank Act.”). But see Hillman v. Maretta, 133 S. Ct. 1943 (2013) (applying the presumption with respect to the

preemption of state laws governing domestic relations).

Judicial analysis of federal directives to the states has primarily centered on the permissibility of these requirements

under the Tenth Amendment. However, such activities might arguably implicate other constitutional provisions,

including the Guarantee Clause, which obligates the United States to “guarantee to every State in this Union a

Republican Form of Government....” U.S. CONST., art. IV, §4. Traditionally, courts have viewed claims presented under

the Guarantee Clause as raising non-justiciable political questions, but in New York v. United States, the Supreme Court

expressly left open the possibility that “not all claims under the Guarantee Clause present non-justiciable political

questions.” 505 U.S 144, 183-185 (1992) (also citing cases where the Court had rejected Guarantee Clause claims on

non-justiciability grounds). Nonetheless, subsequent legal challenges to federal action that have been premised on the

Guarantee Clause have proven unsuccessful. See, e.g., Padavan v. United States, 82 F.3d 23 (2nd Cir. 1996) (challenge

by state officials to adequacy of federal immigration enforcement policies, which was premised on violation of the

Guarantee Clause, deemed non-justiciable); Chiles v. United States, 69 F.3d 1094 (11th Cir. 1995) (same); City of New

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Court in the cases of New York v. United States19 and Printz v. United States.20 The decisions were

premised on the view that under the federalist system, the states are understood to be sovereign

entities distinct from the federal government,21 and Congress cannot muddy this distinction by

commandeering the state political branches to perform functions on the federal government’s

behalf.22 In New York, the Supreme Court ruled that the Tenth Amendment barred the federal

government from directly compelling state legislatures to “enact and enforce a federal regulatory

program” related to the disposal of low-level radioactive waste.23 In Printz, the Court considered

a Tenth Amendment challenge to an interim requirement under federal law that directed state and

local police to conduct background checks on prospective handgun purchases. The Court ruled

that the constitutional prohibition on the federal government commandeering states to administer

a federal regulatory program was “categorical” in nature and, in addition to barring the

commandeering of a state’s legislature, also prevented Congress from “conscripting the State’s

officers directly.”24

However, not every requirement imposed by the federal government upon sub-federal

government entities and officials necessarily violates the anti-commandeering principles

identified in Printz and New York. A number of federal statutes provide that certain information

collected by state entities must be reported to federal agencies.25 The Court in Printz expressly

declined to consider whether these requirements were constitutionally impermissible. Moreover,

the Court distinguished reporting requirements from the case before it, which involved “the

forced participation of the States ... in the actual administration of a federal program.”26

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York v. United States, 971 F. Supp. 789 (S.D.N.Y., 1997) (claim that federal law barring state and local restrictions on

information-sharing with federal immigration authorities violated the Guarantee Clause claim was non-justiciable).

New York v. United States, 505 U.S 144 (1992).

Printz v. United States, 521 U.S. 898 (1997).

See New York, 505 at 155-160 (discussing division of sovereignty in the federalist system, and stating that although

“[t]he actual scope of the Federal Government’s authority with respect to the States has changed over the years ... the

constitutional structure underlying and limiting that authority has not”); Printz, 521 U.S. at 518 (“It is incontestible that

the Constitution established a system of ‘dual sovereignty.’”). The Court identified this distinction as advancing

multiple goals, including better ensuring political accountability by the federal and state governments and reducing the

risk of tyranny that might result in the concentration of power with one sovereign. New York, 505 at 181-183; Printz,

521 at 920-921.

The Court has repeatedly recognized that the Supremacy Clause contemplates the enforceability of federal law in

state court, and that the judicial power afforded under Article III of the Constitution permits federal courts, in

appropriate circumstances, to order state officials to comply with federal laws. See, e.g., New York, 505 at 178-179

(discussing these cases and deeming them inapposite to the issue of whether Congress may commander states to

perform federal regulatory functions, as the “Constitution contains no analogous grant of authority to Congress” as is

granted to the courts under Article III and the Supremacy Clause).

505 U.S. at 161.

Printz, 521 U.S. at 933-934.

See, e.g., 42 U.S.C. §5779 (providing that, when a missing child report is submitted to state or local law enforcement,

the agency shall report the case to the National Crime Information Center of the Department of Justice). For discussion

of various federal reporting requirements applicable to states, see Robert A. Mikos, Can States Keep Secrets from the

Federal Government?, 161 U. PA. L. REV. 103 (2012).

Printz, 521 U.S. at 918. See also id. at 936 (O’Connor, J., concurring) (describing the Court as having refrained

“from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local

authorities pursuant to its Commerce Clause powers are similarly invalid”). For criticism of the distinction made by the

Printz Court between reporting requirements and situations where the federal government directly compels states to

administer federal regulatory programs, see generally Mikos, supra footnote 25.

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Federal measures that impose direct requirements on state or municipal authorities appear most

likely to withstand an anti-commandeering challenge if they (1) are not directed at a state’s

regulation of the activities of private parties;27 and (2) apply to the activities of private parties as

well as government actors. In Reno v. Condon, the Supreme Court unanimously rejected a Tenth

Amendment challenge to the Driver’s Privacy Protection Act (DPPA), which restricted states

from disclosing or sharing a driver’s personal information without the driver’s consent, and also

required the disclosure of some collected information.28 The Court distinguished the DPPA from

the federal enactments struck down in New York and Printz, because the DPPA sought to regulate

states “as owners of databases” and did not “require the States in their sovereign capacity to

regulate their own citizens ... [or] enact any laws or regulations ... [or] require state officials to

assist in the enforcement of federal statutes regulating private individuals.”29 The Court also

viewed it as significant that the DPPA’s requirements relating to information-sharing covered

private entities as well as state governments, though it declined to definitively rule upon whether

or not the federal government may directly regulate state conduct only through laws of general

applicability.30

While the federal government may be constitutionally barred from conscripting state authorities

into assisting in the administration of a federal program, other means may be available to

influence states to adopt favored policies. For example, when Congress acts in an area in which it

may preempt state activity in its entirety, it might impose “preconditions to continued state

regulation” in the otherwise preempted field.31 Congress may also permissibly condition the

receipt of federal funds on state compliance with federal policy preferences. Conditioning the

receipt of federal funding is generally permissible so long as the conditions “bear some

relationship to the purpose of the federal spending,”32 and the conditioned funds are not so

The degree to which the federal law intrudes into a state’s sovereignty might also be a factor. See supra footnote 26

(citing Court’s distinction between federal laws that impose reporting requirements upon states and those that directly

compel states to administer federal programs); City of New York, 179 F.3d 29 (2nd Cir. 1999) (in case decided after

Printz and New York, dismissing Tenth Amendment challenge to federal law proscribing state or local restrictions on

sharing immigration status information with the federal immigration authorities, and suggesting analysis might be

different if affected state restriction covered confidential information generally, rather than the sharing of a particular

type of information with a particular federal entity).

Reno v. Condon, 528 U.S. 141 (2000).

Id. at 151.The Condon Court also stated that while state compliance with the DPPA would require “time and effort”

by state officials, this did not lead to the measure being incompatible with anti-commandeering principles. Id. at 150.

“That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply

with federal standards regulating that activity is a commonplace [situation] that presents no constitutional defect.” Id.

(quoting South Carolina v. Baker, 485 U.S. 505, 514-515 (1988) (upholding federal prohibition upon states’ issuance of

unregistered bonds in the face of a Tenth Amendment challenge)). See also Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985) (extension of overtime and minimum wage requirements of the Fair Labor Standards

Act to public transit company authority did not violate Tenth Amendment).

Condon, 528 U.S. at 151. For further discussion of the evolution of Supreme Court jurisprudence in this area since

the 1970s, see CONGRESSIONAL RESEARCH SERVICE, UNITED STATES CONSTITUTION: ANALYSIS AND INTERPRETATION

(CONSTITUTION ANNOTATED), Federal Regulations Affecting State Activities and Instrumentalities, available at

http://www.crs.gov/conan/default.aspx?mode=topic&doc=Amendment10.xml&t=1|2|3.

Printz, 521 U.S. at 926; New York, 505 U.S. at 173-174 (“Where federal regulation of private activity is within the

scope of the Commerce Clause, we have recognized the ability of Congress to offer States the choice of regulating that

activity according to federal standards or having state law pre-empted by federal regulation.”). See also Hodel v.

Virginia Surface Mining & Recl. Assn., 452 U.S. 264 (1981) (finding permissible a federal statute that preempted state

regulation of surface mining except when it comported with federal standards); F.E.R.C. v. Mississippi, 456 U.S. 742

(1982) (upholding conditional preemption of state regulation of electricity and gas utilities).

New York, 505 U.S. at 167. See also South Dakota v. Dole, 483 U.S. 203, 207-208 (1987) (discussing constitutional

limitations upon the degree to which Congress might conditionally grant federal funds, and upholding the conditioning

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substantial that the inducement to comply with federal preferences is “so coercive as to pass the

point at which ‘pressure turns into compulsion.’”33

Select State and Local Limitations

on Immigration Enforcement Activity

Several states and municipalities have considered or adopted measures intended to limit their

participation in federal immigration enforcement efforts. These limitations take several forms.34

Some states and localities have sought to restrict police cooperation with federal immigration

authorities’ efforts to apprehend removable aliens. Other measures have gone further, and

attempted to shield certain aliens from detection by federal authorities. Still other measures have

sought to ensure that state convictions for certain criminal offenses do not carry immigration

consequences for a convicted alien. The following sections discuss some of the notable state and

local restrictions upon law enforcement activity in the field of immigration enforcement,

including the relationship between these restrictions and current federal law.

Traditional “Sanctuary” Policies

A number of states and municipalities have adopted formal or informal policies which prohibit or

substantially restrict police cooperation with federal immigration enforcement efforts. Entities

that have adopted such policies are sometimes referred to as “sanctuary” jurisdictions, though

there is not necessarily a consensus as to the meaning of this term.35 In some instances,

jurisdictions have self-identified as “sanctuary” sites.36 In other cases, there might be

disagreement regarding the accuracy of such a designation, particularly if state or local law

enforcement cooperates with federal immigration authorities in some areas but not others.37 Any

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of state receipt of a portion of federal highway funds upon the adoption of minimum drinking age of 21).

National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2604 (2012) (quoting Dole, 483 U.S. at

411, and holding that provision in Affordable Care Act, which permitted withholding of future Medicaid payments to

any state that failed to comply with conditions attached to offers for expanded federal Medicaid funding, was

impermissibly coercive).

See supra footnote 4 (citing sources identifying various state and local restrictions on immigration enforcement

activity).

The term “sanctuary” jurisdiction is not defined by federal statute or regulation, though it has been used by the Office

of the Inspector General at the U.S. Department of Justice to reference “jurisdictions that may have state laws, local

ordinances, or departmental policies limiting the role of local law enforcement agencies and officers in the enforcement

of immigration laws.” U.S. Dep’t of Justice, Office of the Inspector General, Audit Division, Cooperation of SCAAP

Recipients in the Removal of Criminal Aliens from the United States, January 2007 (redacted public version), at vii, n.

44 (defining “sanctuary” policies for purposes of study).

See, e.g., San Francisco, CA, Admin. Code, Chapter 12H: Immigration Status (San Francisco ordinance restricting

cooperation with federal immigration enforcement efforts and referring to San Francisco as a “City of Refuge”)

(hereinafter “San Francisco Ordinance”), available at http://sfgsa.org/index.aspx?page=1067; Oakland, CA., Res.

81310 (2008) (reaffirming Oakland’s status as a “City of Refuge” for unlawfully present aliens and expressing

opposition to federal immigration raids at some city locations).

See Op-Ed, “Sanctuary City? Not L.A.,” L.A. TIMES, Aug. 26, 2011 (disputing characterization of Los Angeles as a

“sanctuary” jurisdiction, and citing matters where local police cooperate with federal immigration authorities). See

generally Rose Cuison Villazor, What Is a “Sanctuary”?, 61 SMU L. REV. 133 (2008) (discussing differing meanings

given to the term “sanctuary” when describing policies towards unlawfully present aliens).

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

reference by this report to a policy of a particular jurisdiction is intended only to provide an

illustrative example of the type of measure occasionally referenced in discussions of “sanctuary”

policies.38 These references should not be taken to indicate CRS is of the view that a particular

jurisdiction is a “sanctuary” for unlawfully present aliens.

While state or local measures limiting police participation in immigration enforcement existed

beforehand,39 many of the recent “sanctuary”-type initiatives trace their lineage back to actions by

U.S. churches that provided refuge to unauthorized Central American aliens fleeing civil unrest in

the 1980s. A number of states and municipalities issued declarations in support of these churches’

actions.40 Others went further and enacted more substantive measures intended to limit police

involvement in federal immigration enforcement activities. These have included, among other

things, restricting state and local police from arresting persons for immigration violations;

limiting the sharing of immigration-related information with federal authorities, and barring

police from questioning a person about his or her immigration status.41

Limiting Arrests for Federal Immigration Violations

As previously noted, violations of federal immigration law may be criminal or civil in nature,

with alien removal understood to be a civil proceeding.42 Some immigration-related conduct

potentially constitutes a removable offense and may also be subject to criminal sanction. For

example, an alien who knowingly enters the United States without authorization is not only

potentially subject to removal,43 but could also be charged with a criminal offense relating to

unlawful entry.44 On the other hand, some violations of the INA are exclusively criminal or civil

in nature. Most notably, an alien’s unauthorized immigration status makes him or her removable,

but absent additional factors (e.g., having reentered the United States after being formally

removed),45 unlawful presence does not constitute a criminal offense.

See, e.g., FAIR Compilation of State and Local Restrictions, supra footnote 4 (labeling measures of various

jurisdictions as “sanctuary policies”); Orde F. Kittrie, Federalism, Deportation, and Crime Victims Afraid to Call the

Police, 91 IOWA L. REV. 1449 (2006) (discussing and describing various state and local law enforcement “sanctuary”

policies).

For example, in 1979, the Los Angeles Police Department issued Special Order 40, which barred police officers from

arresting persons for suspected violations of the federal statute criminalizing illegal entry (reversing a policy contained

in a previous police order); prohibited the initiation of police action “with the objective of discovering the alien status

of a person”; and established a process and criteria for notifying federal immigration officials when an unlawfully

present alien was arrested on criminal charges. Los Angeles, CA Police Dept., Special Order 40: Undocumented

Aliens, Nov. 29, 1979, available at http://www.lapdonline.org/assets/pdf/SO_40.pdf (hereinafter “LAPD Order”).

See generally Jorge L. Carro, Municipal and State Sanctuary Declarations: Innocuous Symbolism or Improper

Dictates?, 16 PEPP. L. REV. 297 (1989) (identifying and distinguishing various state and local responses in support of

church actions).

See Kittrie, supra footnote 38, at 1455 (surveying local “sanctuary” policies and describing them as doing “one or

more of the following: (1) limit[ing] inquiries about a person’s immigration status unless investigating illegal activity

other than mere status as an unauthorized alien (‘don’t ask’); (2) limit[ing] arrests or detentions for violation of

immigration laws (‘don’t enforce’); and (3) limit[ing] provision to federal authorities of immigration status information

(‘don’t tell’)”).

See Padilla, 559 U.S. at 365; Lopez-Mendoza, 468 U.S. at 1038-39.

INA §212(a)(6)(A)(i), 8 U.S.C. §1182(a)(6)(A)(i) (providing that an alien is inadmissible and subject to removal if

he or she is present in the United States without have been admitted or paroled, or arrives in the United States at any

time or place other than as designated by the Attorney General (now the Secretary of Homeland Security)).

INA §275, 8 U.S.C. §1325.

INA §276, 8 U.S.C. §1326. For discussion of other criminal statutes potentially applicable to unlawfully present

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

Some jurisdictions have adopted formal or informal measures that restrict or bar police officers

from making arrests for violations of federal immigration law. In some cases, these restrictions

prohibit police from making arrests for “civil” violations of federal immigration law, such as

unlawful presence.46 In other instances, these restrictions are crafted more broadly and may also

restrict arrests for some criminal violations of federal immigration law.47

State or local restrictions on police authority to arrest persons for federal immigration law

violations do not appear to raise significant legal issues. While the INA expressly allows state and

local law enforcement to directly engage in specified immigration enforcement activities within

the parameters established by the applicable INA provision,48 nothing in the INA directly compels

such participation (and indeed, any requirement would raise significant anti-commandeering

issues under the Tenth Amendment).49 Moreover, following the Supreme Court’s decision in

Arizona v. United States, it appears that states and localities are generally preempted from making

arrests for civil violations of the INA in the absence of either specific federal statutory

authorization or the “request, approval, or instruction from the Federal Government.”50

Limiting Information-Sharing with Federal Immigration Authorities

Over the years, some states and localities restricted government agencies or employees from

sharing information with federal immigration authorities, primarily to prevent federal authorities

from using such information to identify and apprehend unlawfully present aliens for removal.

Some of these restrictions have existed for decades, while others are of more recent vintage.51

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aliens, see CRS Legal Sidebar WSLG563, An Overview of Immigration-Related Crimes, by (name redacted).

See, e.g., San Jose, CA, Police Department Duty Manual (redacted public version) (2015), at 501 (“Officers will not

detain or arrest any person not suspected of a State felony or State or local misdemeanor or infraction violation solely

on the basis of the person’s citizenship or status under civil immigration laws.”), available at

http://www.sjpd.org/Records/DutyManual; Washington, DC, Mayor’s Order 2011-174 (Oct. 19, 2011), at 2 (“No

person shall be detained solely on the belief that he or she is not present legally in the United States or that he or she

has committed a civil immigration violation.”), available at http://dcregs.dc.gov/Gateway/NoticeHome.aspx?

NoticeID=1784041 (hereinafter “DC Order”); OR. REV. STAT. §181.850 (barring use of Oregon state funds or resources

to arrest persons for presence in violation of federal immigration laws). See generally FAIR Compilation of State and

Local Restrictions, supra footnote 4 (identifying similar restrictions in other jurisdictions).

See, e.g., LAPD Order, supra footnote 39 (barring arrests for federal crime of unlawful entry); Phoenix, AZ, Police

Department Operations Order Manual, at 1.4 (rev. 2011) (“The investigation and enforcement of federal laws relating

to illegal entry and residence in the United States is specifically assigned to [Immigration and Customs Enforcement

within DHS].”), available at https://www.phoenix.gov/policesite/Documents/089035.pdf.

https://www.phoenix.gov/policesite/Documents/089035.pdf.

For discussion of various INA provisions that authorize immigration enforcement activity by states and localities

(oftentimes under the direction of federal authorities), see CRS Report R41423, Authority of State and Local Police to

Enforce Federal Immigration Law, by (name redacted) and (name redacted).

See supra discussion at “Legal Background.”

Arizona, 132 S.Ct. at 2507. The Arizona Court’s discussion of states’ authority to enforce federal immigration law

was in reference to arrests for non-criminal immigration status violations. The Court did not opine as to whether state

law enforcement agencies are also precluded from making arrests for criminal violations of federal immigration law.

However, lower courts have generally recognized that state and local police are not preempted from making such

arrests. See, e.g., Gonzales v. City of Peoria, 722 F.2d 468 (9th Cir. 1983), overruled on other grounds by HodgersDurgin v. de la Vina, 199 F.3d 1037 (9th Cir. 1999).

See, e.g., San Francisco Ordinance, supra footnote 36 (enacted in 1989, and subsequently amended to permit

communication with federal immigration authorities regarding aliens who have committed felonies); New York City,

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

In 1996, Congress sought to end these restrictions on information-sharing through provisions

contained in the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA)52

and Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).53 Neither PRWORA

nor IIRIRA require state or local government entities to share immigration-related information

with federal authorities.54 Instead, these provisions bar any restrictions that prevent state or local

government entities or officials from voluntarily communicating with federal immigration

authorities regarding a person’s immigration status.55

PRWORA §434 bars state and local governments from imposing any prohibition or restriction on

a state or local government entity that prevents it from sending or receiving information, to or

from federal immigration authorities, regarding the “immigration status” of an individual. IIRIRA

§642 is broader and more detailed in scope. It bars any restriction on a federal, state, or local

governmental entity or official’s ability to send or receive information regarding “immigration or

citizenship status” to or from federal immigration authorities.56 It further provides that no person

or agency may prohibit a federal, state, or local government entity from (1) sending information

regarding immigration status to, or requesting information from, federal immigration authorities;

(2) maintaining information regarding immigration status; or (3) exchanging such information

with any other federal, state, or local government entity.57

Shortly after these measures were enacted, the City of New York, which had in effect a policy that

limited the sharing of information with federal immigration authorities,58 brought suit challenging

the constitutionality of PRWORA §434 and IIRIRA §642. Among other things,59 the city alleged

(...continued)

NY, Exec. Order 124, City Policy Concerning Aliens (1989) (limiting transmission of information about an alien to

federal immigration authorities except in certain circumstances, including when the alien was suspected of criminal

activity) (hereinafter “1989 New York City Ordinance”), available at http://www.nycourts.gov/library/queens/

PDF_files/Orders/ord124.pdf (revoked and replaced in 2003 by New York City Exec. Order 34, as amended by Exec.

Order 41, to permit information-sharing in a broader range of circumstances, but not on the basis of alien’s unlawful

immigration status; copies of these orders can be accessed at http://www.nyc.gov/html/imm/html/eoll/eoll.shtml);

Governor of Maine, Exec. Order 13 FY 04/05, Concerning Access to State Services By All Entitled Maine Residents

(Apr. 9, 2004) (limiting the sharing of information about aliens with federal immigration authorities, except when an

alien is involved in illegal activity other than unlawful status; rescinded by Exec. Order 08 FY 11/12 (Jan. 6, 2011)).

P.L. 104-193, §434 (1996); 8 U.S.C. §1644.

P.L. 104-208, Div. C, §642 (1996); 8 U.S.C. §1373.

Whether Congress could permissibly require states and localities to submit collected information to federal

immigration authorities has not been definitively resolved. As previously noted, the Supreme Court in Printz

distinguished federal laws requiring states to report certain information to federal agencies from instances where it

compelled state authorities to administer a federal regulatory program as to private parties, and chose not to opine upon

whether reporting requirements violated anti-commandeering principles. Printz, 521 U.S. at 918. See also supra

discussion at “Legal Background.”

The provisions expressly apply to restrictions on immigration-related communication between federal, state, and

local government entities and employees. In 2005, a federal district court ruled that neither PRWORA §434 nor IIRIRA

§642 prevented it from issuing a protective order in a case that barred plaintiffs, who were private citizens, from

disclosing the immigration status of an intervening party in the litigation. Day v. Sebelius, 227 F.R.D. 668 (D. Kan.

2005).

8 U.S.C. §1373(a).

8 U.S.C. §1373(b). Federal immigration authorities are also required to respond to immigration status or citizenship

verification requests made by state or local authorities pertaining to persons within their jurisdiction. 8 U.S.C.

§1373(c).

1989 New York City Ordinance, supra footnote 51.

The city also argued that the information-sharing provisions in PRWORA and IIRIRA violated the Guarantee Clause

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that the provisions facially violate the Tenth Amendment, because they bar states and localities

from controlling the degree to which their officials may cooperate with federal immigration

authorities. A federal district court dismissed this claim in City of New York v. United States, and a

three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed this ruling in a

1999 decision.

The circuit court observed that unlike the statutes struck down in New York and Printz, the

information-sharing provisions in PRWORA and IIRIRA did not directly compel state authorities

to administer and enforce a federal regulatory program.60 Instead, these provisions protected “the

voluntary exchange” of immigration information between federal and state authorities.61

According to the circuit court, “informed, extensive, and cooperative interaction of a voluntary

nature” between states and the federal authorities is an integral feature of the American system of

dual sovereignty, and the information-sharing provisions of PRWORA and IIRIRA were

consistent with these principles.62

The Second Circuit raised the possibility that the federal government might, in some

circumstances, impermissibly intrude upon state and local entities’ authority to control

information in their possession.63 However, the court found that the City of New York had not

provided evidence that this was such an instance, as the affected city policy only limited the

sharing of a particular type of information (i.e., a person’s immigration status) with a particular

federal agency (i.e., the agency responsible for enforcing federal immigration law).64 According

to the circuit court, the Tenth Amendment does not provide states and local entities with the

“untrammeled right to forbid all voluntary cooperation by state or local officials with particular

federal programs.”65 The court therefore rejected the city’s constitutional challenge to the

information-sharing provisions of PRWORA and IIRIRA, finding that they did not facially

violate the Tenth Amendment.

The City of New York sought to appeal the decision to the Supreme Court, but its petition for

certiorari was denied.66 A few months later, however, the Court issued its decision in Reno v.

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of the Constitution, U.S. CONST. art. IV, §4, by interfering with the city’s oversight of its employees. This claim was

rejected by the reviewing courts. City of New York v. United States, 971 F. Supp. 789 (S.D.N.Y. 1997) (ruling that

claim was non-justiciable); 179 F.3d 29 (2nd Cir. 1999) (even assuming justiciability of a Guarantee Clause claim,

PRWORA and IIRIRA information-sharing provisions were permissible). See also supra footnote 18 (discussing

judicial treatment of Guarantee Clause claims).

See City of New York, 179 F.3d at 35.

Id.

Id. at 37 (“The effect of [PRWORA §434 and IIRIRA §642]…is to nullify an Order that singles out and forbids

voluntary cooperation with federal immigration officials. Whether these Sections would survive a constitutional

challenge in the context of generalized confidentiality policies that are necessary to the performance of legitimate

municipal functions and that include federal immigration status is not before us and we offer no opinion on that

question.”).

At the time City of New York was decided, the federal agency primarily responsible for immigration enforcement

(and specifically referenced by PRWORA §434 and IIRIRA §642) was the Immigration and Naturalization Service

(INS). Following the establishment of the Department of Homeland Security (DHS) pursuant to the Homeland Security

Act of 2002 (P.L. 107-296), the INS was abolished and its enforcement functions were transferred to DHS. See 6

U.S.C. §251.

City of New York, 179 F.3d at 35.

528 U.S. 1115 (2000).

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Condon, discussed in more detail earlier in this report,67 where it found that another federal

statute that regulated the dissemination of information collected by state authorities did not

violate the Tenth Amendment. While it might be argued that the Condon decision provides

support for the constitutional validity of PRWORA §434 and IIRIRA §642,68 no court appears to

have assessed the implications of the Condon decision upon these measures. Since the Second

Circuit’s ruling, it appears that there have been no judicial rulings that have questioned the

validity of the information-sharing provisions in PRWORA and IIRIRA. Although some state and

local measures that purport to limit officials from sharing immigration-related information with

federal immigration authorities remain in effect,69 any attempt by the state or locality to enforce

these restrictions on information-sharing could be challenged on preemption grounds.

Limiting Police Inquiries into Persons’ Immigration Status

Most traditional “sanctuary” policies place restrictions upon police inquiries or investigations into

a person’s immigration status. Some policies provide, for example, that police should not question

a person about his or her immigration status except as part of a criminal investigation.70 Other

policies might provide more specific restrictions that focus upon law enforcement’s questioning

of crime victims and witnesses.71 Still other policies more broadly limit state or local officials

from gathering information about persons’ immigration status.72

See supra discussion at “Legal Background.”

Although the federal statute upheld in the Condon case is in some ways similar to the information-sharing provisions

in IIRIRA and PRWORA, the statutes are not wholly analogous. While each statute regulates information collected by

states, the statute upheld in Condon was characterized by the Court as one of general applicability, regulating both

states, as suppliers of motor vehicle information, and private parties that resold the information in interstate commerce.

Condon, 528 U.S. at 151. The information-sharing provisions in IIRIRA and PRWORA, however, only address

information collected and shared between government entities. But see Dep’t of Justice, Brief on Opposition of Petition

to Grant Cert., City of New York v. United States, 528 U.S. 115 (No. 99-328), at 12 (characterizing the informationsharing provisions of IIRIRA and PRWORA as components of larger regulation schemes that also addressed private

activity). While there is judicial support for the constitutionality of federal regulation of state conduct through laws of

general applicability, the Condon court expressly declined to “decide whether general applicability is a constitutional

requirement for federal regulation of the States….” Condon, 528 U.S. at 151.

See, e.g., New York City, NY, Exec. Order 41, City-Wide Privacy Policy (2003) (restricting disclosure of

immigration-related information); San Francisco Ordinance, supra footnote 36 (barring the request or dissemination of

immigration status information). A common feature of many state or local information-sharing restrictions is language

permitting communication when it is required by law. Arguably, such language could be interpreted to allow

compliance with the information-sharing provisions of IIRIRA and PRWORA, as these measures “require” voluntary

communication to be permitted.

See, e.g., LAPD Order, supra footnote 39 (“Officers shall not initiate police action with the objective of discovering

the alien status of a person.”); DC Order, supra footnote 46 (public safety employees “shall not inquire about a

person’s immigration status ... for the purpose of initiating civil enforcement of immigration proceedings that have no

nexus to a criminal investigation.”); San Francisco Ordinance, supra footnote 36 (barring law enforcement from

stopping or questions persons solely on the basis of immigration status).

See DC Order, supra footnote 46 (“It shall be the policy of Public Safety Agencies not to inquire about the

immigration status of crime victims, witnesses, or others who call or approach the police seeking assistance.”); New

Haven, CN, Mayor’s Office, Press Release, New Haven Police Issue Executive Order – No Resident Should Be Afraid

of Reporting Crime (Dec. 14, 2006) (discussing General Order 06-2, which, among other things, establishes policy of

New Haven Police Department not to inquire into the immigration status of crime victims and witnesses), available at

http://www.cityofnewhaven.com/Mayor/ReadMore.asp?ID={874974A9-AC89-465B-A649-57D122E9FAF9}.

See, e.g., San Francisco Ordinance, supra footnote 36 (general prohibition on gathering information about

immigration status subject to exceptions, including for aliens who have committed felonies); Chicago, IL, Chicago

Municipal Code Chapter 2-173, Welcoming City Ordinance (subject to specific exceptions, including as required by

law, “[n]o agent or agency shall request information about or otherwise investigate ... the citizenship or immigration

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

Although PRWORA §434 and IIRIRA §642 prevent state or local restrictions on sharing

information about a person’s immigration status with federal immigration authorities, these

provisions do not require state or local police to actually collect such information.73 Restricting

the authority of police to question a person about his or her immigration status helps ensure that

law enforcement lacks any information that could be shared with federal immigration authorities.

It could be argued that, even though state or local restrictions on police questioning of persons

regarding their immigration status is not expressly preempted by federal statute, these measures

are nonetheless impliedly preempted by the information-sharing provisions of IIRIRA and

PRWORA. However, this argument was rejected by a California state appellate court in the

context of a legal challenge to the Los Angeles Police Department’s restrictions on investigations

into persons’ immigration status.74 The federal courts have not directly considered this issue. In

Arizona v. United States, the Supreme Court found that a provision of an Arizona statute, which

required police to contact federal authorities to verify the immigration status of certain stopped

individuals, was not facially preempted.75 In reaching this conclusion, the Court did not suggest

that federal law might preempt states or localities from restricting the circumstances in which

police might question individuals about their immigration status.76 Indeed, given that the Arizona

Court held that state and local police were largely preempted from making arrests for immigration

status violations, it seems unlikely that a federal court would find that state or local measures that

limited police questioning of persons about their immigration status would be viewed as

preempted by the INA.

Declining to Honor Immigration Detainers

An immigration detainer is a document by which U.S. Immigration and Customs Enforcement

(ICE) advises other law enforcement agencies of its interest in individual aliens whom those

agencies are currently holding in relation to criminal violations.77 ICE and its predecessor, the

Immigration and Naturalization Service (INS), have used detainers as one means of obtaining

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status of any person....”).

See 8 U.S.C. §1373(b) (barring state or local restrictions on sending, maintaining, or exchanging immigration status

information with federal immigration authorities).

Sturgeon v. Bratton, 95 Cal. Rptr.3d 718 (Cal. Dist. Ct. App. 2009). See also LAPD Order, supra footnote 39

(barring initiation of police action for sole purpose of determining person’s immigration status).

Arizona, 132 S. Ct. at 2508-2509. The Supreme Court’s analysis turned primarily on the issue of whether Arizona’s

requirement that police communicate with federal immigration authorities was preempted by federal law, rather than

the issue of when it might be appropriate to question stopped individuals about their immigration status. Indeed, the

Court suggested that immigration status investigations by Arizona police could be subject to as-applied challenges. Id.

at 2509.

To the contrary, the Arizona Court construed federal immigration law as generally permitting state and local police to

play a limited role in immigration enforcement. Id. at 2506 (state police were generally preempted from arresting aliens

for suspected immigration violations in the absence of an authorizing federal statute).

The standard detainer form (Form I-247) allows ICE to indicate that it has taken certain actions that could lead to the

alien’s removal (e.g., initiating removal proceedings or an investigation into the alien’s removability). The form also

allows ICE to request that the other agency take certain actions that could facilitate removal (e.g., holding the alien

temporarily, notifying ICE prior to releasing the alien). See, e.g., U.S. Dep’t of Homeland Security, Immigration

Detainer—Notice of Action, DHS Form I-247 (12/12), available at http://www.ice.gov/doclib/secure-communities/pdf/

immigration-detainer-form.pdf. ICE also obtains custody of aliens for removal purposes through means other than

detainers. See CRS Report R42690, Immigration Detainers: Legal Issues, by (name redacted), at p. 1 n.3.

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

custody of aliens for purposes of removal proceedings since at least 1950.78 However, ICE’s

implementation of the Secure Communities program in the period between 2008 and 2014 raised

numerous questions about detainers.79 This program relied upon information sharing between

various levels and agencies of government to identify potentially removable aliens.80 Detainers

were then issued for some of these aliens. DHS emphasized that it prioritized “criminal aliens,”

those who posed a threat to public safety, and repeat immigration violators for removal through

Secure Communities,81 and the former Director of ICE further instructed that, among “criminal

aliens,” the focus was to be upon those convicted of “aggravated felonies,” as defined in the INA;

those convicted of other felonies; and those convicted of three or more misdemeanors.82

However, there were reports of detainers issued for persons who were not convicted of any

offense, or whose sole offense was a misdemeanor.83

As a result of these and related reports, several jurisdictions adopted policies of declining

immigration detainer requests for at least some aliens. In many cases, these jurisdictions will

honor immigration detainers for aliens who are being held for felony crimes or who are otherwise

believed to pose a threat to the community, but will decline to honor immigration detainers issued

for other aliens (e.g., those who have committed non-violent misdemeanor offenses).84 In other

See, e.g., Slavik v. Miller, 89 F. Supp. 575, 576 (W.D. Pa. 1950) (stating, of an alien whom immigration officials

sought for purposes of removal, that “a detainer has been lodged for the body of the petitioner at the time that the

fulfillment of the sentence has expired”).

In particular, Secure Communities was seen to result in the issuance of more detainers for aliens at earlier stages in

criminal proceedings than was the practice previously. See, e.g., Brizuela v. Feliciano, No. 3:12CV226, Memorandum

of Law in Support of Motion for Order to Show Cause and Leave to Propound Precertification Discovery Requests, at 7

(filed D. Conn., Feb. 22, 2012) (“Immigration detainers are an integral part of the Secure Communities program;

indeed, the program depends on immigration detainers to work.”); Nat’l Day Laborer Organizing Network v. U.S. ICE,

No. 1:10-cv-3488, Declaration of Ann Benson in Support of Plaintiffs’ Opposition to Defendants' Motion for Stay

(filed S.D.N.Y., Nov. 18, 2011) (“The belief among the advocacy community is that if a local jurisdiction refuses to

honor detainer requests, then the consequences of Secure Communities can be averted.”).

See, e.g., U.S. ICE, Secure Communities: The Basics, available at http://www.ice.gov/secure_communities (last

accessed: April 29, 2015).

Id.

John Morton, Director, U.S. ICE, Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and

Removal of Aliens, Mar. 2, 2011, available at http://www.ice.gov/doclib/news/releases/2011/110302washingtondc.pdf.

The priorities that Mr. Morton articulated appear to have remained in effect until November 20, 2014, when they (along

with the Secure Communities program) were replaced. See U.S. Dep’t of Homeland Security, Secretary Jeh Charles

Johnson, Secure Communities, Nov. 20, 2014, available at

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_secure_communities.pdf (discontinuation of the

Secure Communities program); U.S. Dep’t of Homeland Security, Secretary Jeh Charles Johnson, Policies for the

Apprehension, Detention and Removal of Undocumented Immigrants, Nov. 20, 2014, available at

http://www.dhs.gov/sites/default/files/publications/14_1120_memo_prosecutorial_discretion.pdf (superseding the

March 2, 2011, memorandum on civil immigration enforcement priorities).

See, e.g., Comments on U.S. Immigration and Customs Enforcement Draft Detainer Policy, available at

http://www.legalactioncenter.org/sites/default/files/docs/lac/NGO-DetainerCommentsFinal-10-1-2010.pdf. These

comments were made in response to changes in ICE’s detainer policy proposed in 2010. Critics of Secure Communities

also alleged that state and local officials held aliens longer than the 48 hours (excluding weekends and federal holidays)

purportedly authorized by the detainer form and regulations, and that the program resulted in racial profiling and

negatively affected community policing strategies. See, e.g., id.; William Fisher, U.S. Sheriff Abused Immigration

“Detainer,” Lawsuit Charges, Inter Press Service, Apr. 23, 2010, available at http://www.ipsnews.net/2010/04/ussheriff-abused-immigration-detainer-lawsuit-charges/.

See, e.g., Patricia Mazzei, Miami-Dade Plans to Stop Paying for Federal Immigration Detentions, Miami Herald,

Dec. 18, 2013, available at http://www.miamiherald.com/2013/12/18/3826317/miami-dade-plans-to-stop-paying.html

(reporting Miami-Dade county’s adoption of a policy of honoring detainers only for “dangerous criminals and repeat

immigration-law breakers”); California Assembly Bill No. 4, enacted Oct. 5, 2013, available at

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

cases, however, the measure appears to sweep more broadly, for example, barring officials from

honoring immigration detainers absent a “written agreement with the federal government by

which all costs incurred by [the jurisdiction] in complying with the ICE detainer shall be

reimbursed.”85 The detainer policy may also restrict other aspects of the jurisdiction’s response to

federal efforts to identify and/or obtain custody of aliens for purposes of removal.86

Although criticized by some for impeding federal immigration enforcement efforts,87 state or

local policies of declining to honor at least some immigration detainers would appear to be

permissible under federal law. Nothing in the INA purports to require that states and localities

honor immigration detainers.88 The detainer regulations do use language that some have opined

means that holds pursuant to detainers, at least, are required,89 stating that “[u]pon a

determination by [ICE] to issue a detainer for an alien not otherwise detained by a criminal justice

agency, such agency shall maintain custody of the alien for a period [generally] not to exceed 48

(...continued)

http://www.leginfo.ca.gov/pub/13-14/bill/asm/ab_0001-0050/ab_4_bill_20131005_chaptered.pdf (permitting law

enforcement officers to honor immigration detainers only in certain circumstances (e.g., the individual has been

convicted of a “serious or violent felony”); Connecticut Adopts Law to Limit Immigration Detainers, NEW HAVEN

REGISTER NEWS, June 6, 2013, available at http://www.nhregister.com/general-news/20130626/connecticut-adoptslaw-to-limit-immigrant-detainers-2 (honoring detainers only for “immigrants who have felony convictions, belong to

gangs, show up on terrorist watch lists, are subject to deportation orders or meet other safety risks”).

Policy for Responding to ICE Detainers, Sept. 7, 2011, available at http://cookcountygov.com/ll_lib_pub_cook/

cook_ordinance.aspx?Window/Args=1501 (amending §46-37 of the Cook County, Illinois, Code).

Cook County, Illinois, for example, includes in its detainer policy a prohibition upon county personnel “expend[ing]

their time responding to ICE inquiries or communicating with ICE regarding individuals’ incarceration status or release

date while on duty.” Id. This prohibition appears intended to avoid situations wherein immigration officials learn of an

alien’s upcoming release and are present outside the county facility to take him or her into custody. The prohibition

seems to have been drafted as it was—i.e., restricting the sharing of information about “incarceration status or release

date while on duty”—in order to avoid conflicts with §434 of PRWORA and §642 of IIRIRA, both of which expressly

prohibit states and localities from enacting measures that would limit the ability of state and local governments or

officials to share information regarding “immigration or citizenship status” with federal officials. Insofar as Cook

County’s detainer policy restricts only the sharing of information about aliens’ incarceration status or release date while

officers are on duty, an argument could be made that it does not run afoul of PRWORA and IIRIRA because it does not

absolutely bar sharing of information about immigration or citizenship status. However, in 2012 the Director of ICE

claimed that the Cook Country restriction and related measures could be impermissible because they prohibit local

officials from responding to ICE inquiries. See Letter from U.S. ICE Director John Morton to Cook County President

Toni Preckwinkle, Jan. 4, 2012, available at http://legacy.cookcountygov.com/secretary/committees/

LegislationIntergov/FY2012/reports/legis02-09-12%20%28incl.%20attachments%29.pdf#page=39.

See, e.g., Judicial Watch (JW), Press Release, JW Files Lawsuit Against Cook County, Ill. Sheriff for Refusal to

Honor ICE Immigration Detainers, Apr. 22, 2013, available at http://www.judicialwatch.org/press-room/press-releases/

judicial-watch-files-lawsuit-against-cook-county-ill-sheriff-for-refusal-to-honor-ice-immigration-detainers/.

The only express mention of detainers in the INA is in §287(d)(1)-(3), 8 U.S.C. §1357(d)(1)-(3), which discusses the

issuance of detainers for aliens arrested for offenses relating to controlled substances. For further discussion of this

provision and, particularly, whether it restricts ICE’s authority to issue detainers for other offenses, see generally CRS

Report R42690, Immigration Detainers: Legal Issues, by (name redacted), at pp. 9-11.

See, e.g., Rios-Quiroz v. Williamson County, 2012 U.S. Dist. LEXIS 128237, at *11 (M.D. Tenn., September 10,

2012) (expressly rejecting the view that the word “shall” in the detainer regulation, discussed below, prescribes the

maximum period of any detention, instead of requiring the alien be detained); Moreno v. Napolitano, 2012 U.S. Dist.

LEXIS 170751, at *14 (N.D. Ill., Nov. 30, 2012) (describing the language in DHS regulations stating that state and

local law officers “shall maintain” custody of an alien at IC’'s request as “mandatory language”). Note, however, that

the language in Moreno arguably reflects the procedural posture of the case, which required that “all reasonable

inferences [be] drawn in favor of the plaintiff,” and the plaintiffs subsequently conceded that detainers are not

mandatory. See 2012 U.S. Dist. LEXIS 170751, at *14-*15; No. 11 C 5452, 2014 U.S. Dist. LEXIS 138576, at *13-*14

(N.D. Ill., Sept. 30, 2014).

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

hours.”90 However, the caption of the section containing this language refers to “temporary

detention at [ICE] request,”91 and the Executive has taken the position that the regulation requires

that any period of time that a state or locality holds an alien pursuant to a detainer generally be

limited to 48 hours, and not as requiring states or localities to hold aliens pursuant to detainers.92

Several federal courts have similarly characterized detainers as requests or otherwise agreed with

the Executive’s interpretation here,93 in part, because any purported requirement that states or

localities hold aliens for ICE could be seen to run afoul of the anti-commandeering principles of

the Tenth Amendment. For example, in its 2014 decision in Galarza v. Szalczyk, a majority of a

three-judge panel of the U.S. Court of Appeals for the Third Circuit noted if states and localities

were required to detain aliens for ICE, they would have to “expend funds and resources to

effectuate a federal regulatory scheme,” something found to be impermissible in prior Supreme

Court decisions regarding commandeering.94 The Galarza majority also found that such a

requirement would be “exactly the type of command that has historically disrupted our system of

federalism” by obscuring which level of government is accountable for particular policies.95

Note, however, that DHS’s recent discontinuation of the Secure Communities program and its

establishment of a new Priority Enforcement Program (PEP) could allay certain of the concerns

that prompted some jurisdictions to adopt policies of declining immigration detainers. PEP is like

Secure Communities in that it “will continue to rely on fingerprint-based biometric data

submitted during bookings by state and local law enforcement agencies to the Federal Bureau of

Investigation for criminal background checks.”96 However, with PEP, detainers are to be issued

only for aliens who have been convicted of (rather than just arrested for) certain offenses that are

among ICE’s priorities for civil immigration enforcement.97 Further, with PEP, detainers are

8 C.F.R. §287.7(d) (emphasis added).

Id.

See, e.g., Jimenez Moreno v. Napolitano, No. 11-CV-05452, Defendants’ Answer, at ¶ 24 (filed N.D. Ill., Dec. 27,

2012) (federal government specifically denying the allegation that federal regulations “impose[] a requirement upon [a

state or local law enforcement agency] to detain [aliens] on [its] behalf” in its answer to a complaint filed in federal

district court in Illinois challenge federal detainer practices); Dep’t of Homeland Security, ICE Detainers: Frequently

Asked Questions, available at http://www.ice.gov/news/library/factsheets/detainer-faqs.htm (last accessed: July 9,

2015) (characterizing detainers as requests). Note also that the standard detainer form currently states that detainers are

“requests.” See U.S. Dep’t of Homeland Security, Immigration Detainer—Notice of Action, DHS Form I-247 (12/12),

available at http://www.ice.gov/doclib/secure-communities/pdf/immigration-detainer-form.pdf.

See, e.g., Ortega v. U.S. Immigration & Customs Enforcement, 737 F.3d 435, 438 (6th Cir. 2013) (federal

immigration officials issuing detainers to local law enforcement “asking the institution to keep custody of the prisoner

for the [federal immigration] agency or to let the agency know when the prisoner is about to be released”); Liranzo v.

United States, 690 F.3d 78, 82 (2d Cir. 2012) (“ICE issued an immigration detainer to [jail] officials requesting that

they release Liranzo only into ICE’s custody”); United States v. Uribe-Rios, 558 F.3d 347, 350 n.1 (4th Cir. 2009)

(detainers as “request[s] that another law enforcement agency temporarily detain an alien”); United States v. Female

Juvenile, A.F.S., 377 F.3d 27, 35 (1st Cir. 2004) (“detainer . . . serves as a request that another law enforcement agency

notify the INS before releasing an alien from detention”).

745 F.3d 634, 644 (3d Cir. 2014).

Id.

Secure Communities, supra footnote 82, at 2. Specifically, the fingerprints of persons arrested by state and local

officers are sent to the FBI’s Integrated Automatic Fingerprint Identification System (IAFIS), which then sends them to

ICE’s Automated Biometric Identification System (IDENT). This system automatically notifies ICE personnel

whenever the fingerprints of persons arrested by state and local officers match those of a person previously encountered

and fingerprinted by immigration officials. ICE personnel then review other databases to determine whether the person

is in the United States illegally or otherwise removable, and may issue detainers for aliens who appear to be

removable.,

Id. Specifically, aliens must have been convicted of an offense listed in the priority 1(a), (c), (d), or (e), or priority

2(a) or (b), categories as given in the November 20, 2014, memorandum on Policies for the Apprehension, Detention

(continued...)

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

generally to be used only to request that state and local law enforcement officials notify ICE prior

to the alien’s release or transfer to another institution, not to request that state and local officials

detain aliens beyond the point when they otherwise would be released for the state or local

offense so that ICE may assume custody.98 Any detainers issued to request detention (as opposed

to notification) would generally have to specify that (1) the alien is subject to a final order of

removal, or (2) “there is other sufficient probable cause to find that the person is a removable

alien.”99

Shielding Unlawfully Present Juveniles from Federal Detection

One way in which the INA regulates immigration is by establishing the conditions under which

aliens may enter and remain in the United States. Along with these conditions, it imposes

sanctions to deter unlawful entry or presence in the United States. In particular, INA §274

imposes criminal penalties upon those who would transport unlawfully present aliens to or within

the United States, or shield such aliens from detection by federal immigration authorities.100 Some

activities by state or local governments or private parties have the potential to run afoul of these

“anti-transportation” and “anti-harboring” provisions because the traditional conception of

sanctuary entails providing material assistance—most notably, a place of refuge—to those in

need.101 Indeed, several individual participants in the sanctuary movement in the 1980s were

(...continued)

and Removal of Undocumented Immigrants. See Policies for the Apprehension, Detention and Removal of

Undocumented Immigrants, supra footnote 82. These “priority” categories include: (1) aliens engaged in or suspected

of terrorism or espionage, or who otherwise pose a danger to national security; (2) aliens convicted of offenses of

which an element was active participation in a criminal street gang, as defined in 18 U.S.C. §521(a), or aliens not

younger than 16 years of age who intentionally participated in an organized criminal gang to further the illegal activity

of the gang; (3) aliens convicted of offenses classified as a felony in the convicting jurisdiction (other than a state or

local offense for which an essential element was the alien’s immigration status); (4) aliens convicted of an “aggravated

felony,” as that term was defined in INA §101(a)(43) at the time of the conviction; (5) aliens convicted of three or more

misdemeanor offenses (other than minor traffic offenses or state or local offenses for which an essential element was

the alien’s immigration status), provided that the offenses arise out of three separate incidents; and (6) aliens convicted

of “significant misdemeanors,” such as offenses of domestic violence; sexual abuse or exploitation; burglary; unlawful

possession or use of a firearm; drug distribution or trafficking; driving under the influence; or offenses for which the

individual was sentenced to time in custody of 90 days or more.

Secure Communities, footnote 82, at 2.

Id. These limitations on the use of detainers to request that states and localities hold aliens after they would otherwise

be released for any state or local offense also serve to address recent concerns about whether such holds are permissible

under the Fourth Amendment. See Miranda-Olivares v. Clackamas County, No. 3:12-cv-02317-ST, 2014 U.S. Dist.

LEXIS 50340 (D. Or., Apr. 11, 2014) (finding a violation of the Fourth Amendment where a county denied an alien

release on bail for which she otherwise qualified, and held her an additional day after her release from state charges,

because she was the subject of an immigration detainer requesting that she be held so that ICE could investigate her

removability); Morales v. Chadbourne, 996 F. Supp. 2d 19 (D. R.I. 2014) (finding that the Fourth Amendment claim of

a naturalized U.S. citizen who was held pursuant to a detainer so that ICE could investigate her removability had been

sufficiently pled to withstand a motion to dismiss).

100

INA §274(a)(1)(A)(ii)-(iii); 8 U.S.C. §1324(a)(1)(A)(ii)-(iii) (imposing a fine and/or term of imprisonment upon any

person who “knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United

States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by

means of transportation or otherwise, in furtherance of such violation of law; [or] knowing or in reckless disregard of

the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or

shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any

building or any means of transportation”).

101

See Kristina M. Campbell, Humanitarian Aid Is Never a Crime? The Politics of Immigration Enforcement and the

Provision of Sanctuary, 63 SYRACUSE L. REV. 71, 113, 115 (2012); Cuison Villazon, supra footnote 37 at 139, 144.

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convicted of violating §274 because of their efforts to move unlawfully present aliens within the

United States and ensure they were not detected by federal immigration officials.102

At least as a general rule, state or local measures that restrict involvement with federal

immigration enforcement efforts typically would not appear to implicate the anti-harboring

provisions of federal immigration law. However, a state or local policy under which government

officials affirmatively took steps to prevent the federal government from removing a particular

alien might raise more serious concerns, particularly if the officials within the jurisdiction know

(or have reason to know) that specific individuals are unlawfully present103 and play a “key role”

in furthering the aliens’ unlawful presence (in the case of transportation),104 or “substantially

facilitate” their continued presence in the United States (in the case of harboring).105

Such policies or practices would appear to be most likely to develop vis-à-vis specific segments

of the unlawfully present alien population which are seen as particularly vulnerable to

mistreatment, such as juveniles. For example, beginning in 2008, San Francisco’s practice of

flying unlawfully present aliens in the juvenile justice system who do not have a parent or

guardian in the United States back to their home countries, or placing them in group homes in

southern California, was subject to a federal grand jury investigation of potential violations of

§274.106 Whether such policies did indeed run afoul of the anti-harboring provisions in the INA

was not definitively determined, as San Francisco reportedly abandoned its policy and federal

criminal charges were not pursued.

102

See, e.g., United States v. Gonzalez-Torres, 273 F.3d 1181 (9th Cir. 2001); United States v. Aguilar, 883 F.2d 662

(9 Cir. 1989), cert. denied, 498 U.S. 1046 (1991); United States v. Merkt, 794 F.2d 950 (5th Cir. 1986); United States

v. Elder, 601 F. Supp. 1574 (S.D. Tex. 1985).

103

Compare United States v. Powell, 498 F.3d 890 (9th Cir. 1974) (defendant need not know the names of individual

aliens to know that they are unlawfully present), cert. denied, 419 U.S. 866 (1974) with United States v. CamachoDavalos, 468 F.2d 1382 (9th Cir. 1972) (defendant cannot be said to know that individuals are unlawfully present aliens

based on the facts that they are “Mexican appearing,” speak Spanish, and could not produce immigration documents

upon request).

104

See, e.g., United States v. Velasquez-Cruz, 929 F.2d 520 (8th Cir. 1991) (defendant’s actions must be more than

incidental to the alien’s unlawful presence, they must have played a key role); United States v. Barajas-Chavez, 134

F.3d 1444 (10th Cir. 1998) (transportation in furtherance of an alien’s unlawful presence refers to the defendant’s

purpose in providing transportation, not the logical result or effect of providing transportation); United States v.

Salinas-Calderon, 585 F. Supp. 599 (D. Kan. 1984) (requiring a direct and substantial relationship between providing

transportation and the furtherance of an alien’s unlawful presence).

105

See, e.g., United States v. Vargas-Cordon, 733 F.3d 366 (2nd Cir. 2013); United States v. Lopez, 521 F.3d 437 (2nd

Cir. 1975), cert. denied, 423 U.S. 995 (1975). It should also be noted that harboring need not involve clandestine

sheltering, or concealment of unlawfully present aliens from the general public. See, e.g., United States v. Acosta De

Evans, 531 F.2d 428 (9th Cir. 1976) (harboring involves shelter from detection, not necessarily clandestine sheltering),

cert. denied, 429 U.S. 836 (1976); United States v. Smith, 112 F.2d 83 (2d Cir. 1940) (concealment need only be from

immigration officials, not from the general public).

106

See City and County of San Francisco, Legal Issues in Connection with Proposed Amendment to Sanctuary City

Ordinance, Aug. 18, 2009 (copy on file with the authors) (noting that the investigation was still ongoing at the time this

memorandum was written).

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State and Local “Sanctuary” Policies Limiting Participation in Immigration Enforcement

Modifying Criminal Sentences to Avoid

Immigration Consequences

An alien’s conviction for a crime under state law may also carry consequences for the alien under

federal immigration law.107 A criminal conviction may, depending on the circumstances, subject

the alien to removal under the INA, disqualify the alien from obtaining relief from removal (e.g.,

asylum) or an immigration benefit, and potentially result in the alien being barred from reentering the United States once removed.108 Because states are responsible for the vast majority of

criminal prosecutions in the United States,109 they have a substantial influence on the size and

make-up of the alien population who are removable on criminal grounds.

Some state authorities have sought to reduce or eliminate the immigration consequences of

certain criminal convictions. In many instances, whether an alien’s criminal activity makes him

removable under the INA depends both upon the nature of the criminal offense for which the

alien was convicted and the sentence that was imposed.110 A few states have lowered the

maximum available sentence for certain offenses to 364 days’ imprisonment,111 so that aliens will

not be subject to removal under those grounds of the INA requiring the alien to have been

sentenced to at least a year’s imprisonment.112

State courts may consider the immigration consequences of a criminal conviction or sentence

during the course of criminal proceedings against a foreign national.113 In some situations, state

107

See generally CRS Report RL32480, Immigration Consequences of Criminal Activity, by (name redacted).

Id. The most significant immigration consequences attach to any crime designated as an “aggravated felony” under

the INA. INA §101(a)(43); 8 U.S.C. §1101(a)(43). The list of criminal offenses identified as aggravated felonies

includes both general categories of crimes (e.g., theft, crimes of violence) and many specific criminal offenses (e.g.,

specific federal tax offenses). The definition also includes some misdemeanor offenses (i.e., offenses punishable by a

maximum sentence of imprisonment for less than a year and a day), as well as traditional felonies (i.e., offenses

punishable by more than a year imprisonment).

109

See U.S. Dep’t of Justice, Felony Sentences in State Courts, 2004, BUREAU OF JUSTICE STATISTICS BULLETIN (Jul.

2007) (estimating that 1,079,000 adults were convicted of a felony by a state court in 2004, compared to 66,518

persons in federal court that same year).

110

In some instances, however, a conviction for a specified offense constitutes a ground for removal regardless of the

sentence imposed. See, e.g., INA §237(a)(2)(A)(v), (a)(2)(B) (providing that aliens convicted of most controlled

substance offenses, or for failing to register as a sex, offender are removable), 8 U.S.C. §1227(a)(2)(A)(v), (a)(2)(B).

111

See WASH. REV. CODE §9A.20.021 notes (2011) (explaining intent behind reduction of the maximum sentence for

gross misdemeanor offenses to 364 days was to ensure that a single conviction for such an offense could not make an

alien removable under INA provisions making a listed offense a ground for removal when the alien is sentenced to at

least a year’s imprisonment); NEV. REV. STAT. §193.140 (2013).

112

For example, a crime of violence or theft constitutes an “aggravated felony” making a convicted alien removable if

he was sentenced to at least a year’s imprisonment. INA §101(a)(43)(F)-(G), 8 U.S.C. §1101(a)(43)(F)-(G); INA

§237(a)(2)(A)(iii), 8 U.S.C. §1227(a)(2)(A)(iii). See also INA §237(a)(2)(A)(i) (providing that a conviction for a crime

of moral turpitude within five years of admission is a removable offense if the alien had been sentenced to

imprisonment for one year or more). As noted previously, some criminal convictions constitute grounds for removal

regardless of the sentence imposed. See supra footnote 110. Moreover, two or more convictions of crimes of moral

turpitude, not arising out of the same scheme of conduct, make an alien removable. INA §237(a)(2)(A)(ii), 8 U.S.C.

§1227(a)(2)(A)(ii).

113

See generally Washington State Supreme Court, Gender and Justice Commission and Minority and Justice

Commission, Immigration Resource Guide for Judges (Jul. 2013) (providing guidance to state judges regarding the

immigration consequences of criminal sentences and convictions under Washington state law), available at

http://www.courts.wa.gov/content/manuals/Immigration/ImmigrationResourceGuide.pdf (hereinafter “Washington

Immigration Guide for Judges”).

108

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courts (possibly with the recommendation of the state prosecutor) might resolve a criminal case in

a manner that avoids triggering immigration consequences for the criminal defendant. For

example, the court might authorize the parties to enter an agreement that resolves the case in a

manner that does not constitute a “conviction” for INA purposes.114 If an alien is convicted of a

crime that constitutes a removable offense under the INA only when the alien is sentenced to a

specified length of imprisonment, the court might opt to sentence the alien to a lesser term that

does not result in removability. A court might also choose to modify an already-imposed sentence

so that it no longer has immigration consequences.115 Federal legislative proposals have

occasionally been considered that would negate the effects of some of these actions by state

courts,116 but none of these bills have been enacted.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

114

For INA purposes, a “conviction” refers to:

a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been withheld, where (i) a

judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted

sufficient facts to warrant a finding of guilt, and (ii) the judge has ordered some form of punishment, penalty, or

restraint on the alien’s liberty to be imposed.

INA §101(a)(48)(A), 8 U.S.C. §1101(a)(48)(A). “[T]he question of what constitutes a “conviction” [under the INA]…

is a question of federal, not state, law.” Griffiths v. I.N.S., 243 F.3d 45, 49 (1st Cir. 2001). Accordingly, whether or not

the disposition of a criminal case constitutes a “conviction” under state law has no bearing on whether the disposition

constitutes a “conviction” for federal immigration purposes. Some state courts or bar associations have issued

instruction manuals that provide guidance as to when state courts’ dispositions of criminal cases might constitute

“convictions” for purposes of the INA. See Washington Immigration Guide for Judges, supra footnote 113, at chapter 7

(discussing deferred adjudications and other alternative forms of case resolution available under state law, and when

these resolutions might constitute “convictions” for INA purposes).

115

When assessing whether a criminal sentence gives rise to removability, immigration authorities will give full faith

and credit to a court reduction to an alien’s criminal sentence nunc pro tunc, even if the reduction was made solely to

prevent the criminal sentence from having immigration consequences. See In re Cota-Vargas, 23 I. & N. Dec. 849

(2005). On the other hand, a conviction that is vacated solely to avoid immigration consequences, rather than because

of a procedural or substantive defect in the criminal proceedings that had resulted in the conviction, is treated as still

being effective for removal purposes. See In re Pickering, 23 I. & N. Dec. 621 (BIA 2003); Cruz-Garza v. Ashcroft,

396 F.3d 1125, 1129 (10th Cir. 2005) (citing agreement with Board of Immigration Appeals construction of the INA’s

definition of “conviction” by several federal circuits). But see Garcia-Maldonado v. Gonzales, 491 F.3d 284 (5th Cir.

2007) (conviction deemed in effect for immigration purposes even if a direct appeal is pending).

116

See, e.g., H.R. 4437, §613, 1st Sess., 109th Cong. (2005) (House-passed bill modifying INA’s definition of

“conviction”); H.R. 2278, §301, 1st Sess., 113th Cong.(2013) (similar).

Congressional Research Service

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