Best estimates say there are about 11 million undocumented immigrants living in the United States. In Philadelphia, that number is somewhere around 50,000, according to the Pew Research Center; that’s a small percentage of our immigrants, who make up the fastest-growing population in the city—a population that is part of what is most beautiful about Philadelphia.
In fact, immigration is part of what’s most beautiful about America. It is America. And like America, immigration is also complicated. Which is why issues of immigration don’t respond well to simple moral arguments, or simple safety arguments, or simple economic arguments.
Like the debate about “Sanctuary Cities.” It’s something about which the Mayor, his supporters, and immigration advocates have held firm—and on which President Trump (and before him President Obama), Republican state legislators, and anti-illegal immigration hard-liners have pushed back. But it’s also something about which few people seem to share an understanding. There seem to be as many different ideas about what constitutes a Sanctuary City as there are people who have those ideas, and for good reason.
“Sanctuary City is not a term that has any legal meaning,” says Anil Kalhan, an immigration lawyer and associate law professor at Drexel University. “And it’s not helpful. It describes different things in different places, most of which were instituted not out of a desire to give sanctuary, but for other policy objectives—like policing or health. It masks and hides a whole lot of things.”
Here, an attempt to clear all that up.
What is a Sanctuary City?
It’s easier to say what it is not: The term “Sanctuary City” is not a legal term. And it means different things to different political entities, cities and citizens. As such, it is not an especially helpful term when trying to make sweeping decisions about law enforcement nationwide.
The phrase comes from the “Sanctuary Movement” of the 1980s, when the U.S. saw an influx of refugees fleeing violence and civil war, particularly from Central America. Over the course of a decade roughly 1 million asylum-seekers crossed the southern border into the open arms of churches all over the U.S. While sanctuary cities weren’t controversial at the time—religious congregations were even commended for their humanitarian outreach—after 9/11, the Patriot Act, and the Clear Law Enforcement for Criminal Alien Removal Act, the debate about immigrants turned hotly political.
“Calling cities ‘Sanctuaries’ is a knee-jerk reaction,” says Alkus. “But it’s understandable. We don’t want someone who is an aggravated felon, and is here illegally. But the residents of Philadelphia don’t want people ripped out of their homes, either. That hurts all of us.”
These days, the term generally applies to jurisdictions where police are instructed (formally or informally) not to cooperate with ICE when they have in custody someone whom they suspect is an undocumented immigrant. But those rules are different even among cities that have earned a reputation for being sanctuaries. And the definition is so vague that it can cover even jurisdictions that insist they are not sanctuary communities—like Delaware County, which has made its way on to the conservative think tank Center for Immigration Studies’ list of 300 jurisdictions nationwide that refuse to cooperate with ICE.
The term has become either a badge of honor or a smear, depending on your perspective on the issue. In Philadelphia, Mayor Nutter in 2014 took a stand against what he saw as the “overly aggressive” reach of ICE under President Obama’s Secure Communities program by signing an executive order to grant Philadelphia sanctuary status, allowing undocumented immigrants to receive government services such as 9-1-1, emergency hospital care, and the use of libraries and recreation centers without fear of questions that would lead to deportation. Nutter reversed course in 2015, after Secretary of Homeland Security Jeh Johnson instituted the Priority Enforcement Program, which prioritized for deportation proceedings undocumented immigrants who were convicted of violent crimes, involved in gangs, or were engaged in or suspected of terrorism.
On his first day in office, Mayor Kenney signed an executive order reinstituting Philly’s sanctuary status. But since the election of Donald Trump, he has tried to put some distance between the city and the phrase itself. “We’ve changed the name from sanctuary city to Fourth Amendment city,” Mayor Kenney announced two days after the presidential election. “So yeah, we will continue…abiding by the Constitution.”
Whatever you call it, what happens to undocumented immigrants in Philadelphia police custody?
When someone is arrested—immigrant or not—their information enters a criminal database system, which can alert ICE to the immigration status of a person in custody. These are primarily people who have been charged, but not yet convicted, for the arresting offense; after conviction, they usually are sent to state facilities, outside the jurisdiction of Philadelphia.
On occasion, that information triggers a “detainer request,” a form sent from ICE asking the local agency to keep the prisoner in custody for an additional 48 hours, after they have been granted bail or would otherwise be released. This time allows ICE to investigate the particulars and decide whether to start deportation proceedings against the individual. If ICE does not take the person into custody, federal law mandates they be released after 48 hours, excluding weekend and holidays.
This is where things get complicated. A “detainer request” is not the same thing as a judicial arrest warrant to start deportation proceedings. If presented with a warrant, First Deputy Managing Director Brian Abernathy says, the city will hold the undocumented person until ICE picks them up. ICE has issued four such warrants since Kenney has been Mayor. One person was turned over to ICE; the other three, with charges for simple assault, rape and drugs, are pending because the inmates are still in city custody. They will be turned over to ICE when their cases have been adjudicated, and/or they have served their time.
A nuanced poll, by Quinnipiac University in late February, resulted in a nuanced take on the issue. Only 19 percent of Americans think the U.S. should deport all undocumented immigrants; 22 percent say the U.S. should deport only immigrants who have committed any crime; and 53 percent say only immigrants who have committed a serious crime should be deported.
In lieu of a warrant, Philadelphia officials have instructed the Prisons Department to decline a detainer request. In other words, they release the suspect as scheduled, even if ICE says it wants to hold them over for possible deportation—and even if that person has a violent felony on his record. Abernathy says this has happened 45 times since January, 2016. As an example, last summer the city released on bail three undocumented immigrants with previous convictions for aggravated assault, gun charges, drunk driving and drug manufacturing. ICE issued a press release in August announcing that the agency, after having its detainer request denied, later arrested them and started deportation proceedings—though it is unclear whether the men are suspected of committing any new crimes after the city released them.
Sen. Pat Toomey has contended that the city’s actions “give extra protection to dangerous criminals, just because they happen to be in the country illegally.” In fact, Abernathy says, the city treats everyone who is arrested the same: Whether documented, undocumented or a citizen, they are released when a judge says to do so—unless another law enforcement agency has a warrant for their arrest.
But confusion over this issue is understandable—in part because the city itself speaks about its policies in confusing terms. Mayor Kenney’s executive order from January 4, 2016, says the city will comply with ICE only when requests are “supported by a judicial warrant and they pertain to an individual being released after conviction for a first- or second-degree felony involving violence.” (Emphasis added.) And last summer the Mayor released a statement that said, “The City of Philadelphia does cooperate with the federal government in the case of suspected terrorism, when the individual has been charged with a federal crime and when the individual in question has committed violent first or second degree felonies.” He does not mention anything about a warrant—leading some to understandably assume the city cooperates with detainer requests in these instances.
Abernathy acknowledges that the language of the order may have been less clear than intended. Kenney spokesperson Lauren Hitt says that with his order, the Mayor was “providing guidance solely with respect to voluntary detainer and notification requests. The City has historically cooperated with federal criminal warrants, including warrants obtained by ICE, and the [order] did not seek to change that.”
Forty-five people is not a lot on which to make, or break, policy—though ICE has indicated the number of requests will increase in the coming months under Trump’s regime. So far, Abernathy says the number of requests spiked at the end of 2016—not in the last 63 days since Trump took office, but in the waning days of the Obama Administration. “These are not new issues,” Abernathy notes.
Isn’t the city breaking the law?
It’s unclear, really. The federal government determines immigration policy. But several courts have ruled that ICE detainers are unconstitutional, including a case from Lehigh County in which the Third Circuit Court of Appeals Court held the 2010 arrest and detainer of a New Jersey-born man ICE incorrectly tagged as an undocumented immigrant from the Dominican Republic to be unconstitutional. In that case, the U.S. Court of Appeals ruled that municipalities are not required to keep people based on detainer requests. The county and the city of Allentown, meanwhile, paid the man $130,000 for the mistake. Abernathy cites the Lehigh case in arguing that the city cannot comply with ICE detainer requests. “We don’t hold someone against their will in this country unless there are charges pending,” Abernathy says.
Alkus at Temple advocates for a two-pronged approach to immigration reform: A path to legalization for the thousands of undocumented immigrants whose only crime was entering the country illegally, or overstaying their visas. And real consequences for employers who are hiring undocumented workers, often at outrageously exploitative wages.
Last year, a federal district court in Illinois made the same determination about Chicago waiver requests. And earlier this month, a judge in Miami-Dade County took a different stance against ICE detainer requests, contending they violated the 10th Amendment, which prohibits the federal government from meddling in state affairs unless specifically stated in the Constitution. In his order, he quoted none other than the conservative hero and late Supreme Court Justice Antonin Scalia. “A federal agency wants [the suspected undocumented immigrant] to be a federal prisoner, but demands that the county do the imprisoning on the federal government’s behalf,” the judge, Milton Hirsch, wrote. “That is a demand that the federal government is constitutionally prohibited from enforcing, and it is a demand with which the local government is constitutionally prohibited from complying.”
This has led to some confusion among law enforcement agencies, including sheriffs, who operate most of the jails around the country. A recent article from the Pew Trusts noted that “local authorities in 43 states refused to honor more than 16,000 detainer requests from ICE from October 2013 to December 2015. Only in Alaska, Delaware, Hawaii, Maine, Montana, Vermont and Wyoming did local officials honor all requests, and detainers are relatively rare in those states.” The National Sheriffs Association met with President Trump and Homeland Security Secretary John Kelly in February for clarification on the law. But it will likely take a Supreme Court ruling to make the final determination—which is bound to happen relatively soon.
So why doesn’t ICE just get a warrant?
Part of the problem is immigration law itself. Someone who is here without valid documents may not necessarily be deportable; they could have overstayed their visa because of a technicality, like if an employer forgot to file for an extension. Or, frankly, the person being detained might actually be a citizen (see the Lehigh County case above). Joseph Alkus, a Temple University criminology lecturer who spent 20 years as a federal customs and immigration officer, says in those cases ICE may never start deportation proceedings against someone being held—but wants time to investigate.
There is a well-documented backlog in federal immigration hearings. And as has also been chronicled over the last few years, ICE’s detention facilities are full to the point of a human rights crisis. Professor Kalhan says there are some 33,000 people in immigration detention in the country every night, around 400,000 a year. President Trump is asking Congress to authorize money for building new facilities, and for ramping up ICE personnel. In the meantime, though, asking local facilities to hold suspects while ICE does an initial investigation and starts proceedings pushes the cost of that detention onto local governments. How you see that cost depends on how you view this issue: Well-spent to ensure a possibly dangerous undocumented person is off our local streets, or an unfair use of local funds, when federal money is supposed to cover the cost of immigration proceedings.
Complicating matters is the fact that deportation is often not as simple as driving immigrants to the border and escorting them “home.” Some 23 countries—including China, from where, according to a recent New York Times analysis, some 268,000 undocumented people hail—do not cooperate with deportation requests. Which means there isn’t even anywhere for them to go.
Does this policy make the city more or less safe?
There are well-and repeatedly-documented cases of undocumented immigrants released into the community who go on to commit heinous crimes, like Honduran national Ramon Aguirre-Ochoa—whom Senator Pat Toomey has invoked—who was arrested for raping a child in Philadelphia last summer. And, there is the case of Kate Steinle, in San Francisco, allegedly killed by a repeat felon in 2015 who was still in the country illegally; her tragic death became a focal point during the Presidential campaign.
According to the nonpartisan Migration Policy Institute, about 3 percent of undocumented immigrants nationwide have committed felonies, nearly 300,000 of the 11 million who are here. Another 520,000 have been convicted of lesser crimes. That is a small percentage—it’s half of the proportion of felons in the overall United States population—but it is not nothing.
“The people who believe detainers are a way to improve community safety are not totally crazy,” says Aaron Chalfin, assistant professor of criminology at Penn. “People are arrested for a crime like a robbery. They go before a judge, and are arraigned, pay bail, are out of jail awaiting trial—they might commit a new crime. If there’s a detainer, on the basis of immigration policy, that person might be detained, and then removed.”
But studies by Chalfin and others show that detainer policies like the ones President Trump is trying to enforce have no effect on overall community safety. “There is a perspective that if Secured Communities can prevent homicide, it’s worth it,” says Chalfin. “But you can’t find that in the statistics.”
The lack of trust makes communities more dangerous. “Law enforcement can’t solve crimes without citizen help,” Alkus says.“They need a certain degree of trust to do that. If they’re also looking for people who are here illegally, police will be disenfranchised from the communities they serve.”
In fact, Chalfin says, communities with high concentrations of undocumented immigrants are some of the safest in the country. Take El Paso, for example: Situated across the Rio Grande from one of the most violent places in the western hemisphere, Ciudad Juarez, the Texas city is 80 percent Hispanic, 20 percent of whom are likely undocumented. And it has one of the lowest homicide rates in the country. The same can be said of San Diego; Mesa, Arizona; and Queens, which has a homicide rate of 3 per 100,000 residents, despite having a large undocumented segment among the 48 percent of its population who are foreign-born. Even Philadelphia, despite an uptick in homicides over the last couple years, is experiencing a period of the lowest crime in 40 years. “If anything, immigration helps to decrease violent crime,” says Chalfin. “If people are looking for a reason to deport people, another argument needs to be found.”
City police chiefs around the country have repeatedly said the same thing about Secure Communities. (Though Philadelphia Police Commissioner Richard Ross has been silent on the issue.) And Trump’s order brings up another issue that they say is important for public safety: Trust.
In Trump’s executive order from January 25, “Enhancing Public Safety in the Interior of the United States,” he allowed the Department of Homeland Security to essentially deputize local cops to serve as immigration agents, allowing them to round up suspected undocumented immigrants, and hold them for deportation. This flies in the face of community policing, which is based on healthy communications between cops and citizens. Alkus says local police are not equipped with either the resources or the knowledge to understand the nuances of federal immigration law. “A lot of people are here what you might call illegally, but are not deportable—maybe because of a technicality,” he says. “It’s a complicated law. Local police don’t have the background or investigative authority to make that determination.”
If city law enforcement agencies start getting involved with immigration, it threatens to break the trust needed between police and citizens to solve and prevent crimes. If immigrants are worried about being deported, they are less likely to report crimes against them, tell police they’ve witnessed a crime, or call in tips on suspicious activity. Just this week, Los Angeles Police Chief Charlie Beck said sexual assault reports among the city’s Latino community have fallen 25 percent, and domestic violence 10 percent this year—a drop not seen among other ethnicities—no doubt owing to the fear sown by Pres. Trump’s rhetoric. “Imagine, a young woman, imagine your daughter, your sister, your mother … not reporting a sexual assault, because they are afraid that their family will be torn apart,” Beck told the Los Angeles Times.
This lack of trust makes communities more dangerous. “Law enforcement can’t solve crimes without citizen help,” Alkus says.“They need a certain degree of trust to do that. If they’re also looking for people who are here illegally, police will be disenfranchised from the communities they serve.”
Are there financial consequences to refusing to comply with ICE detainer requests?
Possibly. Trump has threatened to pull federal funding from Sanctuary Cities, saying in his Executive Order that the government will “Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” But no one is clear on what funding is applicable or exempt; legal experts say the federal government only has the power to cut funding from related programs—like immigration—which is not a huge portion of the Philadelphia city budget, and which would be a strange way to ensure immigration laws are enforced.
The bigger threat comes not from Washington, but from Harrisburg. Two separate bills in the state House and Senate have passed to strip state funding from Sanctuary Cities—which could mean an estimated $600 million hit to the city budget. One, by Northeast Philly Rep. Martina White passed—and then died—in the House last fall; she plans to resubmit the bill next week, including a provision allowing crime victims to sue the city if their assailant was an undocumented immigrant the city refused to hand over to ICE.
Studies show that detainer policies like the ones President Trump is trying to enforce have no effect on overall community safety. “There is a perspective that if Secured Communities can prevent homicide, it’s worth it,” says Chalfin. “But you can’t find that in the statistics.”
The other, from Pittsburgh Sen. Guy Reschenthaler, passed the Senate in February, and now heads to the House. Gov. Tom Wolf has not said whether he would veto the legislation. The threat from Harrisburg is real; that’s why, according to The Inquirer, even City Council President Darrell Clarke last month said the city should rethink its commitment to remaining a Sanctuary City. So far, he hasn’t offered any specifics, though.
That’s politics. What do real people think about sanctuary cities?
Ah, real people. An infinitely more reasonable bunch than politicians. Polls asking just this question have popped all over the country, with varying results, primarily depending on how the question is asked. In Philadelphia, a Pew Research poll on public safety asked if residents agreed or disagreed with the Mayor instructing “the police not to help deport undocumented immigrants except if they are guilty of a serious crime.” This did not really explain the particular policy in question—no mention of warrants, or detainers, or when the city will or won’t help ICE. Given this vague choice, 58 percent of residents said they supported Philadelphia remaining a Sanctuary City, including a majority of blacks, whites and Hispanics. Another 38 percent disagreed with the policy.
Meanwhile, across the country, an Institute of Governmental Studies at UC-Berkeley poll last August found widespread opposition to Sanctuary Cities by asking the question in an almost opposite way. It asked Californians, “Do you believe that local authorities should be able to ignore a federal request to hold an illegal immigrant who has been detained?” In that state, which has the highest proportion of both documented and undocumented immigrants, 73 percent answered No, a number relatively consistent across parties, and among all ethnicities except for Latinos; and even Latinos were opposed to offering “sanctuary” by 65 to 35 percent.
A more nuanced poll, by Quinnipiac University in late February, resulted in—unsurprisingly—a more nuanced take on the issue. That national poll asked Americans to weigh in on exactly which immigrants should be targeted for deportation: Only 19 percent of Americans think the U.S. should deport all undocumented immigrants; 22 percent say the U.S. should deport only immigrants who have committed any crime; and 53 percent say only immigrants who have committed a serious crime should be deported.
Could that be a reasonable middle ground?
It could. Philadelphia should never become an anti-immigrant police state. No reasonable person wants that. Undocumented residents whose only infraction is overstaying a visa, or who were picked up for running a red light, should be left alone to live and be productive in our city. They are part of what makes us vibrant and safe and economically strong and, frankly, interesting.
But that doesn’t mean the line in the sand can’t be shifted: The city could cooperate with detainer requests for anyone who has been convicted of a violent crime. This has risks—as mentioned earlier, the legality of holding suspects is ultimately unknown; there is the possibility of holding citizens who shouldn’t be held; and there are those who worry about the erosion of trust. But do we want to take a moral stand for people who have been convicted of dealing drugs, or stalking their wives, or trading child pornography—or way more heinous crimes—because ICE hasn’t yet produced a warrant? Is that fair to other immigrants, even those who are undocumented, who do no harm? And could this hard line lead to consequences for so-called Dreamers, undocumented Americans brought here by their parents as children, who know no other home?
More broadly, Alkus at Temple says the whole issue of Sanctuary Cities could be made moot with—gasp!—comprehensive immigration reform. Like politicians from both sides of the aisle, he advocates for a two-pronged approach: A path to legalization for the thousands of undocumented immigrants whose only crime was entering the country illegally, or overstaying their visas. “There’s no reason for them or their children to be torn out of the country,” he says. And, as do many others, he favors real consequences for employers who are hiring undocumented workers, often at outrageously exploitative wages. His argument goes beyond morality: Several million more legal residents, paying taxes, living in the light, getting healthcare and education, benefit everyone.
Of course, various permutations of Congress have been talking about immigration reform for at least the last decade, to no avail. A path to citizenship for the 2.7 million undocumented immigrants then living here was first passed when Ronald Reagan was president, and included a crackdown on employers. Later, there was bipartisan legislation supported by George W. Bush, and pushed by the so-called Gang of Eight during President Obama’s administration. But then Speaker John Boehner refused to even introduce it into the House—where it would have passed—because of pushback from the far right. That moment—a piece of political history now—has passed. And the current political situation in Washington does not make the prospect of immigration reform seem likely anytime soon. Which is a shame.
“Calling cities ‘Sanctuaries’ is a knee-jerk reaction,” says Alkus. “But it’s understandable. We don’t want someone who is an aggravated felon, and is here illegally. But the residents of Philadelphia don’t want people ripped out of their homes, either. That hurts all of us.”
With additional reporting from J.P. Romney.
