The question of immigration divides our country. A Pew Research poll conducted in late 2016 shows that 82 percent of Democrats believe that immigrants strengthen our country while only 39 percent of Republicans do.
Trump’s January 27th Executive Orders on immigration have further polarized an already divided country. While hundreds of thousands rushed to airports to protest the entry ban from seven Muslim-majority countries and newspapers excoriated the policy, according to several recent polls, half of Americans are in favor of some sort of ban on entry from “terror-prone regions.”
When it comes to sanctuary cities that refuse to help enforce such federal immigration laws, the vast majority of U.S. citizens are even more unsympathetic. In the last few years, polls have indicated that three-quarters of Californians oppose sanctuary cities. We must remember, however, that fighting for civil rights has always been an unpopular cause in the United States. In 1966, polls indicated that half of Americans believed that Martin Luther King Jr. was detrimental to the African American cause, and 85 percent opposed demonstrations.
In spite of popular antipathy toward undocumented immigrants reflected by public opposition to sanctuary cities, mayors in more than thirty-nine cities have gone on record saying that their cities are sanctuaries that will protect the undocumented. In this moment of crisis and uncertainty, politicians in liberal strongholds want to curry favor with a growing mass movement of people who are angry and frustrated by an increasingly authoritarian government. There has also been a vibrant movement on university and college campuses to declare sanctuaries. However, these declarations of sanctuary mean nothing if they are not also paired with concrete protections. At its most basic, a declaration of sanctuary should mean not handing immigrants into the hands of Immigration and Customs Enforcement (ICE) agents, but it should also include measures like providing assistance to make higher education more financially accessible for immigrants.
There has been a great deal of confusion about the meaning of “sanctuary” because it lacks a legal definition and carries a long history rooted in Judeo-Christian traditions. Some argue that the term “sanctuary” promises protections that cannot be provided by a school or city and thereby mislead the public. Others point out that even though the concept of sanctuary lacks a legal definition, it is a moral aspiration, a statement that universities have an obligation to protect all members in their communities. What everyone agrees on is that the definition of sanctuary is ambiguous.
The medieval concept of sanctuary was a legal protection that allowed people fleeing the law to seek temporary protection in a Church, the reasoning being that proximity to a holy space should provide refuge from secular authority. In England, such a legal protection existed as a matter of law from the 4th through 17th century. After the 17th century, the state expanded its authority, but the concept persisted as a cultural norm, not a legal issue.
Activists kept this Christian-inspired idea alive when they provided safe havens for runaway slaves during the nineteenth century on the Underground Railroad. In the 1980s, religious groups revived the idea of providing safe haven by protecting some of the millions of Central Americans fleeing brutal dictators and civil war. By 1987, scores of cities and several states had declared themselves sanctuaries, prohibiting their employees from cooperating with federal immigration authorities.
The number of sanctuary jurisdictions has skyrocketed since the 1980s, and especially in the months since Trump was elected; there are at least four states, 365 counties, and 39 cities that have refused to comply with ICE detainee requests. Oregon is arguably a fifth sanctuary state based on Thursday’s Executive Order by Governor Kate Brown that expands a 1987 “sanctuary” statute to include all state agencies and not just local law enforcement in refusing to comply with ICE.
Although secular solidarity organizations were involved, it was the religious folk who actually harbored “illegal aliens” and provided them with legal and material support. In the 1980s, the Immigration and Naturalization Service (INS) began to infiltrate the sanctuary movement, gathering evidence to finally put sixteen people on trial on “alien smuggling” charges. In the trial, the accused invoked international refugee law and cited a biblical passage from Leviticus (19:34): “The stranger who sojourns with you shall be to you as the native among you, and you shall love him as yourself.” In the end, eight leaders were found guilty, but they ended up with suspended sentences or serving short periods under house arrest.
Throughout the 1990s and until the present, the idea of sanctuary has remained relevant as the number of detentions and deportations of immigrants rose steadily through Republican and Democratic presidencies, culminating in Obama’s unprecedented deportation of more than two and a half million immigrants. The municipalities, counties, and states that have declared themselves sanctuaries direct their employees to not assist the federal government in immigration matters. But such sanctuaries are reactive, and have failed to stop aggressive expansions of the deportation machine.
Trump Attacks Sanctuary
Trump views sanctuary cities as unpatriotic enemies, and given the fact that cities overwhelmingly voted for his opponent, he may be right. During his campaign, Trump indicated that he would take on the sanctuary cities. He made good on this promise on January 27 by signing an Executive Order which claims that such cities “willfully violate Federal law in an attempt to shield aliens from removal from the United States.”The Order continues that these cities cause “immeasurable harm to the American people and to the very fabric of our Republic.” Trump has threatened to withhold all federal funding from sanctuary cities.
Numerous legal scholars have questioned the legality of withholding federal funds, citing numerous Supreme Court precedents. Given the competing claims, we can expect protracted legal battles between cities and the federal government, with sanctuary cities pushing for local and states’ rights against an increasingly hostile and bullying president. For liberals used to fighting against states’ rights, the defense of local sovereignty is an interesting turn of events.
In the days following the election, students and faculty at colleges and universities throughout the country mobilized to protect the 750,000 Deferred Action for Childhood Arrivals (DACA) students who were being threatened by Trump. More than 125 petitions garnered over 100,000 signatures while scores of university presidents either declared their schools as sanctuary campuses or indicated that they would not cooperate with federal immigration authorities unless compelled to do so by a legal order.
However, many of these schools are not accessible for the undocumented, not because of Trump, but because they are not eligible for federal financial aid. As Laura Emiko Soltis, the director of Freedom University, an alternative college for undocumented students in Georgia, has argued, if colleges and universities want to desegregate themselves and include the undocumented, they must provide funding for undocumented students.
Although Trump promised to end DACA on his first day in office, so far the administration has not released any public information about the program’s future. A draft Executive Order with plans to end DACA has been circulating, but it has not been signed, suggesting that Trump is holding his fire for now. Since the initial DACA program began with a memo from then-Secretary of Homeland Security Janet Napolitano and not an executive order, Trump’s Secretary of Homeland Security John Kelley could easily wipe it away without order by the president. Or the administration may choose just to let DACA lapse and not renew it, which is what the draft Order mandates. This would be a less public way of effectively ending the program. The fact that Trump did not end DACA yet suggests that the massive protests at colleges and universities have been successful in at least temporarily preserving the program.
The Limits of Sanctuary
Although Trump has punted on DACA, he also promised to target 2-3 million “criminal aliens” for deportation during his campaign. Although many such “criminal aliens” were deported under Obama, Trump’s executive orders have drastically expanded the definition of who counts as a criminal alien to anyone who has “committed acts that constitute a chargeable criminal offense,” meaning anyone who is accused of broken any type of law— whether that person has been charged with a crime or not— including unlawful entry into the country.
Trump’s priorities for deportation also includes those who committed “fraud or willful misrepresentation in connection with any official matter or application before a governmental agency,” a catch-all category that targets people who have used a false Social Security number to obtain a job. And finally, those who have received a deportation order but have not left are also a priority for Trump’s regime. The expanded definition of “criminal alien” therefore includes virtually all of the 11 million undocumented residents in the United States, with the significant exception of the 750,000 DACA recipients.
Given such administrative priorities, can the #SanctuaryCampus and Sanctuary City movement actually offer effective protections? In Portland, a sanctuary city in a sanctuary state, ICE has been trolling the DUI diversion program in the Multnomah County courthouse, arresting immigrants. In addition to undercover agents following immigrants out of the courthouse, there have been at least five documented cases of ICE agents arresting Mexican and Honduran immigrants at or near the Multnomah County courthouse. Neither were violent criminals – one of the arrested had a theft conviction and another had a DUI —but the sanctuary designation did not appear to shield them from arrest. According to reports by defense attorneys, four ICE agents checked dockets and then questioned “Latino looking” people about their identities. Judge Nan Waller, the presiding judge in Multnomah County complained, “We are encouraging ICE to see courthouses as sensitive locations, and not to, to the extent possible, enter the courthouse to make arrests.”
So then, Oregon’s state “sanctuary law” doesn’t actually prohibit employees from tipping ICE off to the presence of undocumented immigrants. As Juliet Stumpf, a professor of immigration law at Lewis and Clark Law School stated, “The Oregon statute just says you can’t use Oregon resources, but it doesn’t prohibit an employee of the state from communicating otherwise with ICE immigration officials.” However, Stumpf argues that in spite of a federal statute that prohibits states from preventing their employees from communicating with ICE, the federal law “doesn't compel Oregon to allow employees to use public resources—money, equipment or personnel— to provide information to ICE. If it did, it could run headlong into the Tenth Amendment's prohibition on federal commandeering of state resources." There is a gray area here, but state and municipal sanctuary statutes clearly need to be tightened to prohibit rogue employees from delivering vulnerable immigrants to ICE.
By turning courts into de facto ICE traps for immigrants, immigrants will be dissuaded from showing up to court as witnesses or appearing there to face charges. The very purpose of sanctuary cities is at risk if immigrants cannot safely walk into their local courthouse without fearing being hauled away and deported by ICE agents. Although Trump has claimed that sanctuary cities are hotbeds of crime, an analysis by political scientist Tom Wong at the University of California at San Diego shows just the opposite. Sanctuary cities are much safer than their non-sanctuary counterparts.
In Portland, Mayor Ted Wheeler, who runs the Police Department, and District Attorney Rod Underhill share primary responsibility for deportations through the arrest and conviction of undocumented people and lawful permanent residents for low-level crime. Although Mayor Wheeler has reaffirmed his commitment to keeping Portland a sanctuary city, at the same time, he continues to use the police to employ broken windows policing strategies, filling up local jails with low-level homeless and poor offenders. That’s not to mention the heavy-handed tactics of police who have used pepper spray and flash-bang grenades and arrested anti-Trump protestors.
What is happening in Portland is happening across the country in all of our sanctuary cities. If our mayors, city councilors, and governors do not do a better job of preventing the hijacking of our local courts and police, then sanctuary will have become a meaningless designation that makes us feel good while leaving immigrants hanging in the wind.
In this new era of mass deportation, the link between over-policing and immigration detention and deportation is clear. Fighting for immigrants’ rights requires us to end the policing policies that bring undocumented immigrants into the courts and jails in the first place. Once immigrants land in jail, they are vulnerable to ICE deportations. Sanctuary cannot save them at that point.
Immigrant rights activists cannot simply tout the Americanness of Dreamer students, a group that has widespread public sympathy because they fulfill all of our fantasies about the hard-working and law-abiding immigrant. The other ten million-plus undocumented immigrants, most of whom are Mexican or Central American, are caught up in a system that has criminalized them through over-policing and racist targeting of their communities. Where is the sanctuary for the Latino kid picked up for marijuana possession or an expired license plate? Where is the sanctuary for the Latina who gave a false social security card in order to get a job as a janitor to support her family?
In the 1930s and 1950s, millions of Mexicans were forced out of the U.S. Today, we are faced with an even more draconian plan to deport all 11 million undocumented from the country. And in recent days we have witnessed the most far-reaching immigration restriction in U. S. history: a temporary ban on all refugees and a temporary ban on entry for legal immigrants from seven Muslim-majority countries, whose combined population is more than 200 million people. What’s more, the administration has even suggested that the temporary ban might very well be made permanent and more countries could be added to the list of terror-prone countries.
In the 1980s, it took the dedication of thousands of committed Sanctuary Movement activists willing to commit civil disobedience and go to jail to protect Central Americans from the brutal hands of right-wing dictators in their countries. Whether today’s sanctuary activists are willing to move beyond words to civil disobedience is an open question. The fate, not only of millions of immigrants, but of the very fabric of our democratic republic hangs in the balance.
Elliott Young is Professor of History and Director of Ethnic Studies at Lewis & Clark College. His most recent book is Alien Nation: Chinese Migration in the Americas from the Coolie Era to WWII (UNC Press, 2014).