Sanctuary Policy Prohibition Acts (HB 4083 & HB 4090) Organization Position Statement

Sanctuary Policy Prohibition Acts (HB 4083 & HB 4090)

Organization Position Statement

We, the National Association of Social Workers in Michigan, strongly opposes legislation to ban a county (HB 4090) or local unit of government (HB 4083) from enacting or enforcing any kind of law or policy that limits or prohibits local officials, law enforcement officers and employees of those entities from “communicating or cooperating” with federal officials concerning the immigration status of an individual in the state of Michigan.

Immediately following a 60-day grace period for governments to come into compliance with the law, the bills provide for enforcement through litigation brought by either individual citizens or the Attorney General. Specifically, the bills allow any individual resident of a county or local unit of government to sue in state court if they believe that the county or local unit of government was enacting or enforcing a law, policy, or rule that limits or prohibits an officer or employee from communicating or cooperating with appropriate federal officials concerning the immigration status of an individual. The bills require the attorney general to bring an action for non-compliance in the relevant circuit court.

The bill provides for mandatory remedies if a violation is found, including: (1) an injunction restraining the county or local unit of government from enforcing the law, ordinance, policy, or rule; (2) mandatory repeal of the law, ordinance, policy, or rule, and an award of actual damages and costs; and (3) reasonable attorney fees to the party challenging the law, ordinance, policy, or rule.

HB 4083 further provides for an additional mandatory civil penalty to be imposed against an elected or appointed official who knowingly or willfully violates the law.

Further information, including the full text of the bills, is available on the Michigan Legislature website here and here.

Analysis

NASW-Michigan strongly opposes these bills because they would create powerful incentives for racial profiling in our communities, siphon valuable local resources for federal immigration enforcement, and limit the ability of local jurisdictions to decide whether or not to cooperate with federal immigration authorities.

The bills are substantially similar to legislation introduced in 2009 (HB 4044), 2015 (SB 445) and 2017 (HB 4105 & HB 4334). They place tremendous burdens on local government to assume federal immigration law enforcement duties. Increasingly, ICE is asking local units of government to do its job of immigration enforcement. Currently, localities retain the discretion to choose when and how to cooperate with these requests [1]. The bills would take away that discretion and make cooperation and information-sharing mandatory in all circumstances. There are numerous, well-documented reasons local governments could and should elect not to volunteer their county resources to federal immigration enforcement efforts.

The kind of ICE collaboration required by the bills would create a wedge between local governments and the constituents they represent. Studies have shown that when local officials collaborate with ICE for immigration enforcement, public trust is lost. Law enforcement leaders all over the country have explained that attaching immigration consequences to police interactions makes ordinary police work more difficult [2]. In a recent study, a majority of prosecutors, judges, and police officers reported that ramped-up immigration enforcement makes it harder to protect local communities from crime [3]. Indeed, since the Trump administration took office, crime reporting has plummeted amongst Latinos in multiple cities[4] . And academic studies have confirmed that immigrants avoid local authorities who act as a pipeline to the deportation system[5].

The bills would also distract governments from their primary goals ensuring public safety in their communities—delivering essential services and resources and regulating county and city laws— to focusing on the unrelated task of federal immigration law. The kind of ICE collaboration the bills require would put incredible strain on already sparse local budgets and resources. We pay local taxes to fund local operations, and federal taxes to fund federal operations. ICE is a multibillion dollar-a-year federal immigration enforcement agency that does not need to take away from city and county resources that are desperately needed to maintain local infrastructure, support the arts and education, and ensure public safety within the jurisdiction.

Immigration enforcement by local jurisdictions also increases the risk of racial profiling in our communities[6]. Michigan is a state that is incredibly rich with diversity. Across the state, immigrants and individuals from communities of color that are often associated with immigrants make up the fabric of our communities—they are our neighbors, our friends and family, teachers, doctors, religious leaders, business owners [7]. Local officials who are tasked with the extra burden of enforcing immigration laws are at an increased risk of targeting these individuals for enforcement erroneously[8] .

The bills expose public officials to litigation both from supporters and from individuals who may be harmed by the bill—if officials do not properly interpret the immigration law, or use racial profiling methods to target suspected immigration violators, they expose themselves to another form of legal liability. As explained above, the bills create powerful incentives for racial profiling. And, by design, the bills would subject cities and counties to costly litigation from antiimmigrant individuals and groups who do not perceive that their local units of government are engaging in sufficient "communicating and cooperating" with ICE. “Communication and cooperation” is a concept that is not defined in this bill or in federal law, so that litigation would likely be complex and costly.

Some Michigan communities currently lawfully limit communication and cooperation with ICE in their local codes and many Michigan communities have administrative policies put in place by local law enforcement leadership that this bill would seek to outlaw and punish. For example, just this year, the Kent County Sheriff’s Department enacted a new policy of requiring ICE to provide a federal judicial warrant if ICE wanted the county to hold an individual in a county facility for ICE [9]. This policy change came after ICE asked the county to detain a Michigan-born United States citizen and decorated military combat veteran, alleging he was potentially subject to deportation. The policy is completely legal under current state and federal law, because holding individuals for ICE is optional for local governments [10]. Under these bills (HB 4090 specifically) Kent County’s new policy, firmly grounded in its right under federal law to decline detainers and its fresh experience of their unreliability, could be alleged to be unlawful as a limit on “cooperation.” Any resident could sue their local jurisdiction alleging that a wide variety of perfectly legal local resource and community relations decisions relating to immigration fail to rise to the level of “communication and cooperation” that resident believes is required by this bill.

These bills are not, as the names suggest, about prohibiting counties and local governments from harboring certain immigrants and shielding them from immigration enforcement. Harboring is already illegal and regularly prosecuted and local responsibilities are already addressed under federal law [11]. These bills go much further. They seek to take autonomy from local elected officials and co-opt the valuable resources of our local governments for President Trump’s ever expanding “deportation force.” [12]

Note: This statement has been adapted from the Michigan Immigrant Rights Center Legislative Alert: HB 4083 (“Local Government Sanctuary Policy Prohibition Act”) and HB 4090 (“County Sanctuary Policy  Prohibition Act”)

[1] See e.g. Lopez-Lopez v. Cty. of Allegan, 2018 U.S. Dist. LEXIS 116898, *10, 2018 WL 3407695 (explaining that the fact that “cooperation with ICE detainers is discretionary rather than mandatory” is a “well-settled principle”).

[2] See, for example, Nat’l Imm. Law Ctr., Local Law Enforcement Leaders Oppose Mandates to Engage in Immigration Enforcement (August 2013), https://bit.ly/2J929st (dozens of law enforcement leaders criticizing police-ICE entanglement); Dep’t of Justice, The President’s Task Force on 21st Century Policing Guidebook, at 18 (May 2015) (recommending that ICE not issue detainer requests to local jails), https://bit.ly/2G8S75v; William J. Bratton, The LAPD Fights Crime, Not Illegal Immigration, L.A. Times, Oct. 27, 2009, https://lat.ms/2LXm8IE.

[3] Rafaela Rodrigues et al., Promoting Access to Justice for Immigrant and Limited English Proficient Crime Victims, May 3, 2018, https://bit.ly/2jvGfAr; see also Am. Civil Liberties Union, Freezing Out Justice (2018) (summarizing the results), https://www.aclu.org/report/freezing-out-justice .

[4] See, for example, Rob Arthur, Latinos in Three Cities Are Reporting Fewer Crimes Since Trump Took Office, FiveThirtyEight.com , May 10, 2017, https://53eig.ht/2rjgs40; Cora Engelbrecht, Fewer Immigrants Are Reporting Domestic Abuse. Police Blame Fear of Deportation, N.Y. Times, June 3, 2018, https://nyti.ms/2Lk35ad; James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering Clear of Police and Courts, L.A. Times, Oct. 9, 2017, https://lat.ms/2gqsz93.

[5] See, for example, Marcella Alsan & Crystal S. Yang, Fear and the Safety Net: Evidence from Secure Communities, Harvard Law School, May 2018, https://bit.ly/2kN47QJ; Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, Ctr. for Am. Progress, Jan. 26, 2017, https://ampr.gs/2kxOcHX.

[6] Danyelle Solomon, Tom Jawetz, and Sanam Malik, The Negative Consequences of Entangling Local Policing and Immigration Enforcement, for Am. Progress, Mar.21, 2017, https://www.americanprogress.org/issues/immigration/reports/2017/03/21/428776/ne gative-consequences-entangling-local-policing-immigration-enforcement.

[7] Fact Sheet: Immigrants in Michigan by County, Michigan League for Public Policy, https://mlpp.org/immigration-issues/immigrants-in-michigan-by-county/ ; see also Julie Mack, Number of Immigrants up in Michigan 11% and 8 other Facts, MLive, October 24, 2016, https://www.mlive.com/news/index.ssf/2016/10/number_of_immigrants_up_11_in.html

[8] Supra, n. 5. “But even without meaning to, any Law Enforcement Agency performing immigration enforcement functions with insufficient oversight, training, and guidance is at a heightened risk of making unlawful stops of individuals who look or sound foreign.”

[9] Barton Deiters, Kent Co. Sheriff Changes ICE Policy After Veteran Detained, Wood TV8, Jan. 18, 2019, https://www.woodtv.com/news/grand-rapids/kent-co-sheriff-changes-icepolicy-after-veteran-detained/1710177422

[10] See, Lopez-Lopez v. Cty. of Allegan, infra, n. 1. ( Explaining that detainers are “requests” from Immigration and Customs Enforcement and the fact that “cooperation with ICE detainers is discretionary rather than mandatory” is a “well-settled principle”).

[11] 8 U.S.C. § 1324 (Bringing in and Harboring Certain Aliens); 8 U.S. C. § 1373(a) (Communication Between Government agencies and the Immigration and Naturalization Service).

[12] Geneva Sands, Trump's 'deportation force' begins to take shape, ABC News, Apr 14, 2017, https://abcnews.go.com/Politics/president-trumps-deportation-force-beginsshape/story?id=46789016