Introduction

Concerned about increasing threats to immigrant communities by several racially-fraught immigration policy positions advanced by the incoming federal administration,1 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”2 that assumes responsibility for protecting its most vulnerable members and, in doing so, expands the well-being and security of all. 

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This report is available in Spanish.

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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.3 Immigrant communities are not only living in fear of the termination of recent policies such as Deferred Action for Childhood Arrivals (DACA),4 but also in real fear of draconian federal government policies that include racial profiling,5 raids and mass deportations.6 President-elect Donald Trump made campaign promises to “build a wall” to keep out “Mexicans,” whom he universally labeled as “criminals;”7 to deny refuge for Syrians seeking asylum from civil war, including Syrian children;8 to institute an unconstitutional national registry for Muslims and temporarily ban Muslim immigrants from entering the country;9 to retract President Obama’s executive order deferrals of deportation for young people; and to deport 2-3 million undocumented immigrants.10 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.11 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.12

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.13 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.14

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.15 Additional forms of protection include not sharing information about immigration status, safeguarding school environments, and policies protecting against discrimination.16 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.17 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

 

  • 1. Leigh Ann Caldwell, “Trump Transition Team Filled with Hardline Anti-Immigration Advocates,” NBCNews.com, Nov. 11, 2016, http://www.nbcnews.com/politics/2016-election/trump-transition-team-filled-hardline-anti-immigration-advocates-n682651.
  • 2. Dr. Martin Luther King’s vision of nonviolence and social justice included working towards a Beloved Community in which “racism and all forms of discrimination, bigotry and prejudice will be replaced by an all-inclusive spirit of sisterhood and brotherhood.” The King Center, The King Philosophy: The Beloved Community,  http://www.thekingcenter.org/king-philosophy#sub4. His vision was global and inclusive of immigrants, because justice and freedom from discrimination are the birthright of every human being. Id.
  • 3. Holly Yan, Kristina Sgueglia and Kylie Walker, “ ‘Make America White Again’: Hate Speech and Crimes Post-election,” CNN.com, last Updated Dec. 22, 2016, http://www.cnn.com/2016/11/10/us/post-election-hate-crimes-and-fears-trnd/index.html (over 867 hate crimes reported by the Southern Poverty Law Center in the 10 days following the November 8, 2016 election, including “ugly episodes of racist or anti-Semitic, pro-Trump graffiti along with threats or attacks against Muslims.”). Melanie Eversley, “Post-election Spate of Hate Crimes Worse than Post-9/11,” USA Today, Nov. 14, 2016, http://www.usatoday.com/story/news/2016/11/12/post-election-spate-hate-crimes-worse-than-post-911-experts-say/93681294/.
  • 4. Miriam Jordan, “Young Immigrants Fear Deportation Under Trump,” Wall Street Journal, Nov. 20, 2016,  http://www.wsj.com/articles/young-immigrants-fear-deportation-under-donald-trump-1479671457 (President-elect may end DACA, authorized via federal Executive Action in 2012, which enables over 750,000 undocumented immigrants brought to U.S. as children before age 16 to apply for a two-year renewable work authorization and temporary protection from deportation). Emerging bipartisan legislation may help protect current DACA recipients. Seung Min Kim, “Graham Preparing ‘Dreamers’ Bill,” Politico.com, Nov. 30, 2016, http://www.politico.com/story/2016/11/lindsey-graham-dreamers-bill-immigration-232017.
  • 5. Theodore Schleifer, “Donald Trump Defends Racial Profiling in Wake of Bombings,” CNN.com, Sept. 20, 2016, http://www.cnn.com/2016/09/19/politics/donald-trump-racial-profiling/; Emily Stephenson, “Trump Says U.S. Should Mull More Racial Profiling after Orlando Shooting,” Reuters, June 20, 2016,  http://www.reuters.com/article/us-usa-election-trump-idUSKCN0Z50PV.
  • 6. Carter Evans, “Immigrants, Pointing to Past, Fear Impact of Trump’s Mass Deportation Plans,” CBS News, November 10, 2016, http://www.cbsnews.com/news/immigrants-pointing-to-past-fear-impact-of-mass-deportations/.
    See also Reuters, “Tech Employees Vow Not To Help Trump Surveil and Deport Immigrants,” Fortune, December 13, 2016, http://fortune.com/2016/12/13/tech-immigrants-trump/ (over 100 vital employees of major U.S. technology companies pledged not to help Trump’s administration build a data registry to track people based on race, ethnicity, national origin, color or religion or assist in mass deportations).
  • 7. Michelle Ye Hee Lee, “Donald Trump’s False Comments Connecting Mexican Immigrants and Crime,” Washington Post, July 8, 2015, https://www.washingtonpost.com/news/fact-checker/wp/2015/07/08/donald-trumps-false-comments-connecting-mexican-immigrants-and-crime/?utm_term=.2ef7f8c24e46 (quoting the presidential candidate, verbatim: “ ‘When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.’ –Real estate mogul Donald Trump, presidential announcement speech, June 16, 2015.”).
  • 8. Lauren Gambino, “Trump and Syrian Refugees in the US: Separating Fact from Fiction,” The Guardian, September 2, 2016, https://www.theguardian.com/us-news/2016/sep/02/donald-trump-syria-refugees-us-immigration-security-terrorism; Nick Allen and Ruth Sherlock, “Donald Trump: ‘I’ll Look Syrian Children in the Face and Say They Can’t Come,’” The Telegraph, February 9, 2016, http://www.telegraph.co.uk/news/worldnews/donald-trump/12147515/After-tomorrow-Donald-Trump-could-be-unstoppable.html.
  • 9. Chris Riotta, “Will Donald Trump Require Muslims to Enter National Registry? Transition Team Proposal Sparks Constitutionality Debate,” International Business Times, November 19, 2016, http://www.ibtimes.com/will-donald-trump-require-muslims-enter-national-registry-transition-team-proposal-2447900; see also Jenna Johnson, “Trump Calls for ‘Total and Complete Shutdown of Muslims Entering the United States,’” Washington Post, December 7, 2015, https://www.washingtonpost.com/news/post-politics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslims-entering-the-united-states/?utm_term=.ed74e97ad297; cf.; Jeremy Stahl, “Obama Dismantles Program That Could Be Trump’s Muslim Registry Prototype,” Slate.com, December 22, 2016, http://www.slate.com/blogs/the_slatest/2016/12/22/obama_dismantles_controversial_registry_before_trump_enters_office.html (“The Obama administration announced on Thursday that it would be dismantling a long unused registry for visitors from mainly majority-Muslim or Arab countries, a program which president-elect Donald Trump has indicated he might revive ... The program, known as the National Security Entry-Exit Registration System or NSEERS, initially required that men aged 16 and over from countries on the list register and be fingerprinted upon arrival in the United States, then regularly check in with immigration officers.”). See also Michael Price and Faiza Patel, “Muslim Registry or NSEERS Reboot Would Be Unconstitutional,” LawFare, November 22, 2016, https://www.lawfareblog.com/muslim-registry-or-nseers-reboot-would-be-unconstitutional (analyzing the constitutionality and legality of NSEERS and other “national security” proposals that discriminate on the basis of race/ethnicity or religion). 
  • 10. Julie Hirschfield Davis and Julia Preston, “What Donald Trump’s Vow to Deport Up to 3 Million Immigrants Would Mean,” New York Times, November14, 2016, http://www.nytimes.com/2016/11/15/us/politics/donald-trump-deport-immigrants.html?_r=0.
  • 11. See Yan, Sgueglia and Walker, supra n. 2 (citing particularly egregious examples reported by CNN among the following ongoing list of hate crimes and bias incidents [for the definition of “Hate crime,” see U.S. Federal Bureau of Investigation (FBI), What We Investigate: Hate Crimes, https://www.fbi.gov/investigate/civil-rights/hate-crimes (last visited Dec. 26, 2016)]: “Mosques get letters calling for genocide. ‘Americans for a Better Way’ sent copies of a letter to at least five California mosques, calling Muslims ‘a vile and filthy people’ and advocating genocide … ’There’s a new sherriff [sic] in town -- President Donald Trump,’ reads the letter … ’He is going to cleanse America and make it shine again,’ it continues. ‘And, he’s going to start with you muslims [sic]. He’s going to do to you muslims what Hitler did to the jews [sic]. You muslims would be wise to pack your bags and get out of Dodge.’”; “‘Deportation’ letters handed out at school. A student at Shasta High School in Redding, California, posted a video on Twitter of himself handing letters with the word ‘deportation’ written across the top to half a dozen students [.]”; “Nazi-themed graffiti in Philadelphia. Someone spray-painted the words ‘Sieg Heil 2016’ and ‘Trump’—with a swastika substituted for the T in Trump—on a building’s glass window on South Broad Street[.]”; “Graffiti in high school: ‘Trump,’ ‘Whites only,‘White America’. Minnesota high school student Moses Karngbaye said he was terrified to see racist graffiti scrawled inside a bathroom. Someone had written ‘#Go back to Africa’ and ‘Make America great again’ on a toilet paper dispenser … The bathroom door was also covered with graffiti, including ‘Whites only,’ ‘White America’ and ‘Trump.’”; “‘Build the wall’ chanted at high school tournament. Students … in northwest Texas say they were the target of ethnically charged slurs while warming up for a regional volleyball tournament. ‘When they were saying “Build that wall” and holding the Trump sign, we knew it was for us,’ … Most of the school’s students are Hispanic.”; “‘Go home’ scrawled on car. A Puerto Rican family’s car was vandalized on November 17, with the words ‘Trump’ and ‘Go home’ scratched into the car in West Springfield, Massachusetts … Jorge Santiago, an Army veteran who has served two deployments overseas, noticed … after he put his daughter on the bus to school.”).
  • 12. Update: 1,064 Bias-Related Incidents in the Month Following the Election, Southern Poverty Law Center, (SPLC), Dec. 16, 2016 [hereinafter “SPLC Report”], https://www.splcenter.org/hatewatch/2016/12/16/update-1094-bias-related-incidents-month-following-election. (“Overall, anti-immigrant incidents (315) remain the most reported, followed by anti-black (221), anti-Muslim (112), and anti-LGBT (109). Anti-Trump incidents numbered 26 (6 of which were also anti-white in nature, with 2 non-Trump related anti-white incidents reported).”)
  • 13. For a list of some of the various types of sanctuary policies that provide protections for immigrant communities, see Section A. 
  • 14. See Section B.1(a) for further discussion.
  • 15. Jasmine C. Lee, Rudy Omri and Julia Preston, “What Are Sanctuary Cities?,” New York Times, September 3, 2016,  http://www.nytimes.com/interactive/2016/09/02/us/sanctuary-cities.html (analyzing based on data from the Immigrant Legal Resource Center). 
  • 16. The term sanctuary can be traced back to the 1980s when churches and local jurisdictions decided to protect Central American refugees who were fleeing violence, whom the United States government failed to give asylum. See, e.g., Huyen Pham, “The Constitutional Right Not to Cooperate – Local Sovereignty and the Federal Immigration Power,” Univ. Cincinnati L. Rev. 1374, 1382-84 (2006). The concept can be traced back to abolitionist churches and some northern states providing sanctuary for former slaves. See Allan Colbern, DRAFT ARTICLE: “Regulating Movement in a Federalist System: Slavery’s Connection to Immigration Law in the United States” (forthcoming, 2016), at 19-25, http://www.allancolbern.com/uploads/2/6/5/4/26549732/colbern-regulatingmovement-underreview.pdf, cited with author’s permission. 
  • 17. See discussion and sources cited in Part B, infra. See also Alex Dobuzinskis and Joseph Ax, “Mayors of NY and Los Angeles Pledge to Remain Immigrant Sanctuaries,” Reuters.com, November 10, 2016,  http://www.reuters.com/article/us-usa-immigration-sanctuarycities-idUSKBN13604P; Jennifer Medina, “California Weighs Protections for Immigrants Threatened by Trump Policies,” New York Times, December 4, 2016,  http://www.nytimes.com/2016/12/04/us/california-to-consider-laws-to-protect-immigrants-from-trump-policies.html (proposed legislation includes free legal help to undocumented immigrants during deportation proceedings, further assistance in criminal court, and further limitations on local law enforcement’s cooperation with federal immigration agents. The new law would go even further than the current state Trust Act Law enacted in 2014, which prohibits local jails from holding immigrants any longer than required by criminal law, with exceptions for violent and other serious crimes, prohibiting all state and local law enforcement agencies from responding to requests from immigration authorities.). For an example of higher educational institutional sanctuary policies, see Teresa Watanabe, “UC Won’t Assist Federal Agents in Immigration Actions Against Students,” L.A. Times, November 30, 2016, http://www.latimes.com/local/education/la-me-ln-uc-undoc-student-protections-20161130-story.html (noting that the University of California system “would refuse to assist federal immigration agents, turn over confidential records without court orders or supply information for any national registry based on race, national origin or religion.”).