Concerned about increasing threats to immigrant communities by several racially-fraught immigration policy positions advanced by the incoming federal administration, Demos and LatinoJustice PRLDEF are issuing this preliminary report on the ability of local communities to decide, based on their own form of local government, how they may enact policies to protect immigrant rights. This report is by no means comprehensive; it is intended to provide advocates with basic information about available options to effectively address the very real safety and security threats to immigrant communities. Our research demonstrates how local democratic institutions may enact counter-measures that welcome and include immigrants as equal members of society. We believe that this moment of crisis provides an opportunity for local governments and schools to dedicate themselves to building a “beloved community” that assumes responsibility for protecting its most vulnerable members and, in doing so, expands the well-being and security of all.
Este informe está disponible en español
This report is available in Spanish.
Know your rights: protect yourself against ICE activity by reading United We Dream's multilingual fact sheets
Since the November 2016 election of a presidential candidate who ran on a platform of racialized xenophobia, a troubling wave of hate speech and hate crimes has been unleashed; the largest number has occurred in schools. Immigrant communities are not only living in fear of the termination of recent policies such as Deferred Action for Childhood Arrivals (DACA), but also in real fear of draconian federal government policies that include racial profiling, raids and mass deportations. President-elect Donald Trump made campaign promises to “build a wall” to keep out “Mexicans,” whom he universally labeled as “criminals;” to deny refuge for Syrians seeking asylum from civil war, including Syrian children; to institute an unconstitutional national registry for Muslims and temporarily ban Muslim immigrants from entering the country; to retract President Obama’s executive order deferrals of deportation for young people; and to deport 2-3 million undocumented immigrants. For communities of color, the rhetoric has already resulted in the creation of a hostile environment, saturated with high levels of hate speech and hate crimes, even in schools and directed against places of worship. In the month following the election of Donald J. Trump to the nation’s highest office, over 1,000 bias-related incidents were documented, and nearly 37 percent of them included perpetrators expressing support for Mr. Trump while engaging in such deplorable acts against humanity.
In response, starting in the days immediately after the election, cities around the country reaffirmed their commitment to providing some form of sanctuary for immigrants. Other local communities have sought to begin providing such protections, while student- and parent-led activism has led to schools reaffirming and seeking to expand them. Churches, hospitals and other local institutions may also provide protections for immigrants. It is important to know that these protections may be contested, as the federal government has “exclusive jurisdiction” over immigration law enforcement. Moreover, local jurisdictions that have provided protections for immigrants have had their federal funding threatened.
But even with these threats, there are various ways in which local communities are working to meet these challenges and protect their own residents, such as refusing to provide local resources to enforce civil immigration law, and providing safeguards against racial profiling or other unconstitutional actions. Many of these protections are already in use, and as our research shows, recent case law challenging civil rights violations in this regard may provide some baseline of protection for immigrant communities in the coming years.
Currently, around 400 jurisdictions, including at least 4 states, 39 cities, and 364 counties, share a strong commitment to inclusion, diversity, and welcoming immigrant communities through what is loosely-termed “sanctuary policy,” through which they limit cooperation with federal requests to hold immigrants in detention. Additional forms of protection include not sharing information about immigration status, safeguarding school environments, and policies protecting against discrimination. Even though sanctuary policies are likely to be attacked, legal analysis shows that communities have some leeway to decide for themselves whether their local democracy will welcome and protect immigrants. While the federal government has “exclusive jurisdiction” over immigration enforcement, our constitutional system of federalism permits communities to exercise democracy at the local level, and creates avenues to resist the most draconian impulses of the federal government. Although local communities cannot entirely stop federal immigration enforcement, violations of equal protection and tactics such as racial profiling and commandeering of local police to round up members of our local communities for deportation have been resisted effectively in the past, and can and should be resisted in the future.
Part A of this report will briefly describe various types of local protections for immigrants. Part B will describe the basic legal parameters, as well as current legal threats, regarding local governmental policies intended to protect undocumented persons from aggressive federal immigration enforcement. It will also explain how the U.S. Constitution supports local jurisdictions in shielding against inquiries into immigration status, protecting against racial profiling, refusing to detain immigrants, resisting excessive incarceration and deportations, and perhaps most importantly, safeguarding public school children, among other measures. Part C will summarize these conclusions and related policy advocacy recommendations.
We hope this information is helpful, and we encourage advocates to seek out and choose among a wide variety of tools in their pursuit of inclusive local democracies that reject discrimination, advance equal protection and welcome immigrants, in the way that best meets local community needs. This challenging time will require ongoing learning and adjustments in tactics and strategies to present the strongest defense of sanctuary policies and the inclusive vision of community, safety, security and local democracy that they embody.
Download the full report to read more