In Colorado, municipalities address issues associated with federal immigration laws in a variety of ways and municipal attorneys continue to grapple with the legal consequences of different approaches to sanctuary policies. The arrival of 2017 brings new factors to the sanctuary city conversation as a shift in U.S. politics highlights local and federal immigration reform.
There is no legal definition of "sanctuary city." Certain cities often are referred to as sanctuary cities primarily for the leniency shown toward migrants that results from a refusal to dedicate municipal resources to enforcing federal immigration laws.
The term "sanctuary city," although not defined in law, generally has been applied by some as cities that do not permit the use of municipal funds or resources to enforce federal immigration laws. This vague definition causes inconsistencies in the categorization of sanctuary cities. Common practices, however, include:
- limiting cooperation with federal immigration authorities;
- limited response to federal requests to detain individuals;
- not permitting local officers to ask questions about immigration status;
- limiting or prohibiting law enforcement from inquiring or disseminating information about immigration status, except in the case of a serious criminal offense; and
- mandating these policies by passing laws or unofficial practices.
Several online lists classify municipalities as sanctuary cities. Some cities embrace the nomenclature and others do not. Municipal officials may be quick to respond to such labels that their city has not adopted any official sanctuary agendas against federal immigration. This distinction provides the foundation for the sanctuary city conversation and emphasizes the difference between protecting the rights of immigrants and adopting a policy of non-cooperation with the federal immigration laws.
Two federal laws passed by Congress in 1996 prohibit state or local governments from restricting communication with the federal government regarding the immigration status of any individual: Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. § 1373, and Section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. § 1644. Neither law mandates cooperation or the sharing of information with federal immigration authorities, but both laws prohibit restrictions on information sharing between federal and state or local authorities. The federal government, however, has never used these laws to invalidate any sanctuary city practice. (Elizabeth M. McCormick, Federal Anti-Sanctuary Law: A Failed Approach to Immigration Enforcement and a Poor Substitute for Real Reform, 20 LEWIS & CLARK L. REV. 165, 169 (2016).)
In 2014, the U.S. Department of Homeland Security (DHS) implemented the Priority Enforcement Program (PEP), which allows the DHS to work with state and local law enforcement to take custody of dangerous individuals. After individuals are arrested and booked by local authorities, their fingerprints are submitted to the Federal Bureau of Investigation (FBI) for criminal history and warrant checks. This information is now also sent to U.S. Immigration and Customs Enforcement (ICE) to determine whether the individual is a priority for removal. In the event of a fingerprint match, ICE requires law enforcement agencies to notify ICE prior to the individual’s release or transfer to another location. Illegal immigrants convicted of one of ICE’s civil immigration priority offenses are detained; such offenses include aliens apprehended at the boarder or ports of entry while attempting to unlawfully enter the United States, conviction of felony offenses, three or more misdemeanor offenses, and abuse of visa or visa waiver programs. ICE detainer requests can promote unconstitutional racial profiling and potentially violate the Fourth Amendment by mandating local law enforcement to maintain custody of a person for an additional 48 hours or longer.
Several cities implemented counter-policies against the federal immigration mandate in response to PEP (Bridget Stubblefield, Current Development, Development in the Executive Branch Sanctuary Cities: Balancing Between National Security Directives, Local Law Enforcement Autonomy, and Immigrant’s Rights, 29 GEO. IMMIGR. L.J. 541, 543 (2015).). Advocates for sanctuary cities claim that their policies encourage trust and cooperation between immigrant communities and the police as well as increase public safety. Other reasons to implement noncooperation policies include the fiscal concerns related to the costs of enforcing immigration laws, logistical concerns related to training, and the potential for civil liability. (Laura Sullivan, Enforcing Nonenforcement: Countering the Threat Posed to Sanctuary Laws by the Inclusion of Immigration Records in the National Crime Information Center Database, 97 CALI. L. REV. 567, 579 (2009).)
Congress has considered legislation for several years that would reduce federal funding to state and local governments through certain Economic Development Assistance Programs and Community Development Block Grant Programs if the state or local jurisdiction adopted a statute, policy, or practice that prohibits or restricts information sharing about an individual’s immigration status or compliance with a lawfully issued detainer request. Most recently, the Stop Dangerous Sanctuary Cities Act was introduced in the U.S. Senate in 2016. This type of legislation has not passed at the federal level. In 2006, the Colorado legislature adopted a statute that, among other provisions, prohibited local governments from adopting an ordinance or policy that limits or prohibits a peace officer, local official, or local government employee from communicating or cooperating with federal officials with regard to the immigration status of any person within this state (Colo. Rev. State §§ 29-29-101 et seq. (2016).). That statute was repealed in 2013 by House Bill 13-1258 when the legislature declared the importance of building trust in communities and conserving local government resources for other matters.
While the power to regulate immigration remains exclusively a federal power, there is less agreement concerning the power to enforce immigration laws (Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power, 74 U. CIN. L. REV. 1373, 1384 (2006).). The U.S. Court of Appeals for the Third Circuit in Galarza v. Szalczyk, held that “[u]nder the Tenth Amendment, immigration officials may not order state and local officials to imprison suspected aliens subject to removal at the request of the federal government.” (745 F.3d 634 (2014).) Galarza involved a New Jersey-born U.S. citizen of Puerto Rican descent who was held illegally for three days in the Lehigh County Prison. ICE agents requested Galarza’s detention on the assertion that he might be an undocumented immigrant from the Dominican Republic. This case illustrates the freedom granted by courts that allows local agencies to resist commands to imprison persons of interest for federal officials.
Municipal Policies on Immigration
City attorneys must consider a variety of approaches to write policies that declare an acceptance of diversity and comply with established law. Despite federal immigration requirements, local governments continue to protect immigration status information from disclosure through municipal ordinances, executive orders, and other policy announcements. To justify such actions, cities and towns cite the health and safety of the entire community, including unauthorized immigrant residents. (745 F.3d 634 (2014).)
Many Colorado municipalities maintain police service policy manuals with a section on immigrant violations. These manuals can indicate that while police officers do not investigate, detain, or enforce laws based on immigration status, officers do cooperate with federal officials. This guideline reflects the desire to serve the entire community while also assisting federal officials where necessary. (See Sample Police Manual - Immigration Status.)
Other Colorado cities expressly announce the exact message they want to convey to their citizenry regarding diversity and culture. In 2012, the City of Durango created a Community Relations Commission to promote social harmony, increase participation of all persons in all parts of the community, and recommend resolutions to community relations issues. (CITY OF DURANGO, Res. R-2012-26,
A Resolution Establishing A Community Relations Commission for the City of Durango and Defining its Purpose (2012).)
In 2015, to avoid the “sanctuary city” label, Durango adopted a resolution disavowing statements that the community relations efforts aligned with a sanctuary city model. The City maintained the purpose and intent of its Community Relations Commission and proactively denied its categorization as a sanctuary city. (CITY OF DURANGO, Res. R-2015-32, A Resolution Declaring the City of Durango, Colorado is Not Now nor Ever Has Been A Sanctuary City and Further Clarifying the City’s Policy with Respect to All Citizens (2015).)
Online policies allow municipalities to easily update citizens on current practices. Westminster announced online that the City embraces its diverse community and strives to welcome all residents. The City’s website also indicates that local law enforcement officers do not inquire about immigration status. (City of Westminster, Building a Welcoming Community in Westminster, Colorado (Dec. 6, 2016).) Aurora hosts a citizenship and immigration page on its website (City of Aurora, Citizenship and Immigration, (last visited Jan. 6, 2017).). Boulder, Lafayette, and Snowmass Village most recently joined the sanctuary city discussion in Colorado (Alex Burness, Boulder wants ‘sanctuary city’ policy in place by Trump inauguration, DAILY CAMERA (Dec. 11, 2016); Madeleine Osberger, Snowmass Council: Town is a ‘sanctuary city,’ ASPEN DAILY NEWS (Dec. 7, 2016).).
Lafayette passed a resolution in December to implement a “citywide policy whereby no city authority or employee shall inquire into the immigration status of any person, or engage in activities designed to ascertain the immigration status of any person.” Further, the statement rejects the use of terms such as “illegal” and “aliens.” (City of Lafayette, Res. No. 2016-96, A resolution of the City Council of the City of Lafayette, Colorado, Reaffirming Lafayette’s Commitment to Build a Diverse, Inclusive and Just Community Ensuring Equal Protection and Services for All Residents (2016).)
On Jan. 3, 2017, purposefully in advance of the inauguration of the president-elect, Boulder adopted an emergency ordinance declaring the City a sanctuary city. Officials reported that the loss of funding threatened by the upcoming federal administration failed to persuade the City to change its noncooperation policies as Boulder expected to receive only 2 percent of its 2017 budget from the federal government (Alex Burness, Defying Trump, Boulder declares itself a sanctuary city, DAILY CAMERA (Jan. 3, 2017); see also 8 U.S.C. §§ 1227, 1231, 1326. ). Councilmembers emphasized that the new ordinance reflects how the City already operates and only officially documents current policies, including not inquiring about a person’s immigration status, not taking any action based upon a person’s immigration status, and not cooperating with any federal authority with respect to any investigation of a person’s immigration status. Ultimately, the Boulder City Council adopted the sanctuary city ordinance, with amendments, unanimously.
Boulder released a complementary memo that provides insight to the policy reasons behind the emergency action. It states that the ordinances only use the term “undocumented persons,” and explains
“There are several reasons for the choice of this term. First, it is not a crime to remain in the United States without complying with the immigration laws. It is a civil violation, punishable by deportation. It is a crime to enter the country illegally or to enter after being subjected to a deportation order. Many undocumented person fall into the civil violation category and not the criminal one. Labeling all undocumented persons as 'illegal' is over-inclusive.” (CITY OF BOULDER, CITY COUNCIL MEETING AGENDA (Jan. 3, 2017).)
Colorado Funding at Risk
Sam Mamet, CML executive director, spoke on Colorado Public Radio with regard to immigration issues and cities. Mamet indicated there would likely be a huge resistance from local governments if federal funding was affected in perceived sanctuary cities. He also said it may not affect as much funding as one might think, because the 2012 funding census for Colorado governments shows that only 1.7 percent of all funding for Colorado municipalities comes directly from the federal government. (COLORADO PUBLIC RADIO, Sanctuary Cities In Colorado, And How They May Face Problems From Trump (Nov. 29, 2016).)
Executive Order: Enhancing Public Safety in the Interior of the United States
On Jan. 25, 2017, President Donald Trump issued and Executive Order: Enhancing Public Safety in the Interior of the United States. Section 9 of this executive order states in part that “sanctuary jurisdictions” are those that “willfully refuse to comply with 8 U.S.C. § 1373.” As indicated above, federal law, specifically section 1373 of the United States Code, does not mandate cooperation or the sharing of information with federal immigration authorities. Section 1373 prohibits restrictions on information sharing through written or unwritten policy or practices. The executive order purports to remove this voluntary status and mandate the sharing of information for illegal immigrants. Many Colorado cities, however, already maintain police department policies that indicate they will share information with ICE. The executive order states that the U.S. attorney general may take appropriate enforcement action against any city that violates section 1373, or which has in effect a statute, policy, or practice that hinders the enforcement of federal law.
Section 9 of the executive order also grants the secretary of homeland security or the attorney general broad discretion to determine which cities qualify as sanctuary cities. The implications from this discretion will not be known until the secretary issues rules and regulations pursuant to the executive order.
Section 9 of the executive order may permit the withholding of federal funds to sanctuary cities or even require cities to spend municipal funds on immigration enforcement. If interpreted in this manner, other federal laws may impact the legality of the situation. Issues arise with the coercive nature of the law, the nexus of withholding all but law enforcement funds to enforce an immigration law, and the Tenth Amendment, which arguably prohibits the federal government from requiring local governments from enforcing federal regulatory programs.
Cancelling federal funding may qualify as “coercive” under the Spending Clause. In National Federation of Independent Businesses v. Sibelius, 132 S. Ct. 2566 (2012), the United States Supreme Court stated “when Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism.” This case concerned the federal government’s decision to withhold all Medicaid funding if states refused Obamacare’s Medicaid expansion. Following this reasoning, compelling state and local governments to comply with federal enforcement under the threat of withholding funds may be unconstitutional.
The Supreme Court also has held that the Spending Clause requires Congressional conditions placed on grants to be germane to the federal interest in the grant program. In South Dakota v. Dole, 483 U.S. 203 (1987), the Court determined that “if Congress desires to condition the States' receipt of federal funds, it must do so unambiguously, enabling the States to exercise their choice knowingly, cognizant of the consequences of their participation; and that conditions on federal grants must be related to a national concern.” The executive order’s mandate to deny funding to sanctuary cities may lack the required nexus between cities failing to enforce immigration laws and the withholding of federal funds for all but law enforcement programs.
The executive order also may confront issues under the Tenth Amendment, as exemplified in Printz v. United States, 521 U.S. 898 (1997) when the Court struck down a federal law requiring local police department to perform background checks on perspective handgun purchasers. In this case, the Court held that Congress cannot compel states to enact or enforce a federal regulatory program and that “such commands are fundamentally incompatible with our constitutional system of dual sovereignty.” Thus, the executive branch may encounter legal roadblocks to requiring local government enforcement of immigration policies.
Attorney General’s Memorandum
U.S. Attorney General Jeff Sessions has issued a memorandum clarifying the Executive Order. Lisa Soronen, executive director of the State and Local Legal Center, explains the memo in large part returns the law to what it was before the Executive Order.
The Sessions memo states that the term “sanctuary jurisdiction” only refers to jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.” Section 1373 is very narrow; it only prohibits local governments from restricting employee communication of immigration status information to ICE. Many local governments comply with Section 1373 by simply instructing their employees not to ask people about their immigration status so they have no such information to pass along to ICE.
The threat of pulling federal funding is also diminished. Session’s memo says that the Executive Order only applies to Department of Justice and Department of Homeland Security grants. Jurisdictions applying for certain DOJ grants must certify their compliance with Section 1373.
Soronen adds that the President’s efforts continue outside the Executive Order. The President’s proposed budget would expand Section 1373 to prohibit local governments from restricting local law enforcement compliance with ICE detainers. (Even if passed this provision could have Fourth Amendment and Tenth Amendment problems.) It would also expand Section 1373 to allow the Secretary of Homeland Security or the Attorney General to condition immigration, national security, and law enforcement grant funding on compliance with ICE detainers.