Lawyer 2 Lawyer

The Great Debate over Sanctuary Cities

 

The term “sanctuary city” has been widely used in the great debate over immigration policy and protections. Opponents of sanctuary cities claim that policy protects undocumented immigrants from criminal prosecution, where supporters believe these policies are needed to protect the rights of both citizens and undocumented immigrants.

On Lawyer 2 Lawyer, host Bob Ambrogi joins Matthew J. O’Brien, the director of research at the Federation for American Immigration Reform (FAIR), and Jonathan Blazer, the American Civil Liberties Union’s (ACLU) advocacy and policy counsel, to discuss policy, current legislation, immigration reform, and the status of sanctuary cities under a Trump presidency.

Matthew J. O’Brien is the director of research at the Federation for American Immigration Reform (FAIR).  Matt joined FAIR in 2016 and is responsible for managing FAIR’s research activities.

Jonathan Blazer is the American Civil Liberty Union’s advocacy and policy counsel. As the ACLU’s advocacy and policy counsel, Jon tracks developments in state and local measures concerning immigrants as well as police practices and supports the legislative advocacy efforts of ACLU staff across the country.

Special thanks to our sponsors, Clio and Litéra.

View transcript

Lawyer 2 Lawyer – Law News and Legal Topics

The Great Debate over Sanctuary Cities

02/03/2017

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Jonathan Blazer: Does it disturb you Matt that in the case decision that came out yesterday, it was reported that the ICE officer that improperly detained Ms. Morales and the same year that he did that, that over half of the detainers that he issued that year had to be withdrawn as erroneous. Does that bother you that ICE is getting it wrong so often that people are spending an extra two days in jail, and even in a good case scenario the people who are denied bail they can sit in jail for months. We have had clients in that situation who would have otherwise been released. Does that bug you being a former enforcement official?

Matthew J. O’Brien: We don’t know what the detainers were withdrawn for, and without taking a look at the specific ones that could have been any number of problems or it could have simply been the pressure that gets put on the local authorities when they don’t want to comply with these, because of the political issues this has been made into. But the fact is that the immigration laws exist, people violate them, and they are subject to legal penalties for doing so.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession.

You are listening to Legal Talk Network.

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Bob Ambrogi: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. This is Bob Ambrogi, coming to you from just outside of Boston, Massachusetts, where I write a blog called ‘LawSites’, and I also host another of Legal Talk Network show called ‘Law Technology Now’, along with Monica Bay.

My co-host on this show, J. Craig Williams is not able to be with us today. So I will be going it alone.

Before we introduce today’s topic, I would like to just take a moment to thank our sponsors. First off, I would like to thank Clio.

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Well, whatever you think of President Donald Trump, one thing is for sure his timing is impeccable. We have been planning for some time to record a show today on Sanctuary Cities, and just hours before we turned on the mics here, he signed Executive Order basically cracking down on sanctuary cities threatening to withhold Federal funds from sanctuary cities. Of course, even before this the sanctuary cities have been very much in the news off late in July of 2015. A woman Kathryn Steinle was walking on Pier 14 in San Francisco with her father when a man allegedly fired four shots striking her in the back and she later died from those shots. It was found out later that the alleged shooter was an undocumented immigrant from Mexico who had previously been deported on five different occasions and sparking quite a bit of controversy over San Francisco’s policies as a Sanctuary City.

And just recently in the news Texas Governor Abbott had threatened to cut funding the Travis County over Sanctuary City policies there.

So, what are Sanctuary Cities? What are some of the legal issues surrounding them and perhaps we will be able to talk a little bit about President Trump’s Executive Order just signed today as well.

So, to help us do that today, let me introduce the two guests we have on the program.

First of all, let me introduce Matthew J. O’Brien. Matthew is Director of Research at the Federation for American Immigration Reform, also known as FAIR. Matt joined FAIR in 2016 and is responsible for managing FAIR’s research activities. Over the past 20 years he has held a wide variety of positions focusing on immigration issues; both in government and in the private sector.

Immediately prior to joining FAIR, Matt served as the Chief of the National Security Division within the Fraud Detection and National Security Directorate at the U.S. Citizenship and Immigration Services where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives and other national threats.

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Welcome to Lawyer 2 Lawyer Matt O’Brien.

Matthew J. O’Brien: Thank you very much.

Bob Ambrogi: And thanks for being here. And let me also introduce Jonathan Blazer. Jonathan is the American Civil Liberty Union’s advocacy and policy counsel. As the ACLU’s advocacy and policy counsel, Jon tracks developments in state and local measures concerning immigrants as well as police practices and supports the legislative advocacy efforts of ACLU staff across the country.

For seven years prior to joining ACLU, Jon worked with the National Immigration Law Center as a policy attorney and project manager and national coordinator of the American Friends Service Committee’s immigrant rights initiative. He has also worked for six years as a legal services attorney in Philadelphia, where he specialized in public benefits law and founded the Language Access Project of Community Legal Services there. He is based in San Francisco, works for ACLU’s National Political Advocacy Department.

Welcome to Lawyer 2 Lawyer Jon Blazer.

Jonathan Blazer: Thank you. Thanks for having me.

Bob Ambrogi: Jon, let me start with you and ask if — can you give us a definition, what are we talking about when we’re talking about Sanctuary Cities?

Jonathan Blazer: Unclear. I mean which is one of the difficult things about this debate and following along, Sanctuary City is an undefined term that could mean a lot of things to a lot of different people and unfortunately I don’t think that President Trump add a lot of clarity to the debate with his Executive Order today.

I would say that as the media has covered the term and has some local communities have embraced the term and not all do, it’s generally taken to mean states and localities that have in one respect or another decided to steer clear of entangling their own resources and personnel in the Federal deportation process.

There are a variety of policies and practices by which localities can decide not to expand their own local resources on immigration enforcement. One of the policies that has gotten the most attention in recent years and is specifically mentioned in Donald Trump’s new Executive Order is whether or not the locality will hold individuals beyond their ordinary release for Federal immigration enforcement purposes when the locality is requested to do so by Immigration and Customs Enforcement through a piece of paper called an ICE Detainer request.

There has been a flood of litigation in recent years over the constitutionality of ICE’s practices in requesting that individuals be arrested and held for up to two days while they investigate their immigration status, and as a result of that litigation courts around the country has held that localities may be liable for violating individuals constitutional rights under the Fourth Amendment when they hold individuals without the Fourth Amendment’s requirements and protections being met, most importantly that there is probable cause to hold the individual that the individual has committed a crime or is in fact the deported immigrant.

The fact is that ICE makes a lot of mistakes and localities have been found responsible for needing to take costs for damages when ICE gets it wrong, and when they don’t do their due diligence to make sure that they are not holding an individual unconstitutionally beyond their ordinary release.

There is a variety of other practices beyond detainers that have been thrown into the mix, and at a certain level it gets absurd. There have been certain anti-immigration groups that have even referred to Mayors or City Council members who make welcoming comments towards immigrants and refugees saying that we want to live in an inclusive community in which everyone is treated equally, in which newcomers feel welcome. Those kinds of places have wound up on anti-immigrant organization’s tracking lists just primarily saying that they want to be hospitable to immigrants and there is a whole bunch of other policies in between.

I would say the longest-standing one of those and the one that is going to face the fiercest push back from local law enforcement officials in defending it is that it has become just common good sense policing. Over the past 20 years reflected in many police department’s operational manuals to not ask individuals unnecessary and irrelevant questions about their immigration status when they are investigating crimes.

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It is just basic commonsense to police leadership that if you want immigrants to come forward as victims of crimes or as witnesses to crimes that occur and you want to prevent and solve crimes; that immigrants need to know that you aren’t working in cahoots with the deportation process and that they can come forward and know that a law enforcement officer protects them equally.

Bob Ambrogi: Matt O’Brien, do you agree with the Jonathan that it’s difficult to define exactly what we’re talking about here when we talk about sanctuary cities?

Matthew J. O’Brien: No, I don’t. I think that while there is no legal definition of the Sanctuary City, it’s pretty clear that what Sanctuary Cities are saying is we’re going to selectively determine which of the federal laws we wish to obey or not obey and it’s really rule of law issue. The Federal government has the authority to arrest people for immigration violations and has the authority to enforce immigration law and there’s absolutely no reason why municipalities, states, how county jurisdictions should be free to say, well, we’re selectively going to decline to be involved in any kind of immigration law activities.

When you look at other types of law enforcement, criminal enforcement particularly in the drug arena, there are task forces and all kinds of other entities which operate across state and local levels that are involved in enforcement. So the whole argument that this is somehow something that is really interpreted in different ways by different cities is not forthright what it is. You said it is a deliberate attempt by cities to say, hey, we don’t like the immigration laws; therefore we’re not going to enforce them.

Bob Ambrogi: Well one of the things I’ve heard, I’m in Massachusetts and Matt I know you said you’re originally from Massachusetts, there are a number of Sanctuary Cities in Massachusetts and one of the things I hear locally is the argument that why should local law enforcement time and an effort and even funds be put toward enforcing federal immigration law, that’s not our job is what I’ve heard some say. What do you say to that?

Matthew J. O’Brien: Well two things. First of all I think most of the Sanctuary City movement; their real issue is not their funds and questions of the Federal versus Local Jurisdictions. It’s that on principles they don’t agree with the immigration laws. So they’re choosing to violate federal law and if you look at other situations where federal laws apply, if you were looking at federal laws that had to do with say schools or discrimination and the federal government wasn’t complying with those laws, then the local governments would file lawsuits, engage in all kinds of activities to contest that.

The other point that I would make is there is a whole lot of local expenditure that needs to be made. This is really an issue of cooperation with federal authorities. No one is asking to turn the LA Police Department into an arm of ICE. ICE has a large number of employees. I was a trial attorney with ICE and they’re more than adequate to go out and enforce the immigration laws.

What it’s really about is having law enforcement cooperate and this is something that local law enforcement wants from the federal government when it comes to drug enforcement, wildlife enforcement, all kinds of other issues, but for some reason it’s being claimed that when it comes to immigration that this is not a good expenditure of resources.

And I spent a significant portion of my career in law enforcement, grew up in a family full of police officers and I’ve never heard an actual cop as opposed to a politician in a uniform say that somehow law enforcement benefits from non-enforcing immigration laws.

As a matter of fact it’s quite the opposite, and when I was working for it, I regularly got calls from local police officers saying, listen, we need help. We have people that are here that are in gangs. They’re illegal alien criminals. We have people that are violating their immigration status through the crimes they’re committing. Can you please come and pick these people up?

Bob Ambrogi:  Jonathan, in one of the scenarios that you talked about a few moments ago was the detainer request, which, if I’m understanding it correctly this comes up in the context of somebody who has been arrested on some kind of a criminal charge and is being released after going through the initial legal process and that essentially ICE is asking that person be held an additional amount of time so they can check them out and maybe even get the personnel together to come get that person. Is that the scenario of that that this comes up in and what are the Constitutional issues around that?

Jonathan Blazer: Right. What you described is correct, I think it is important to note that once the ordinary criminal process has occurred could mean something as minimal as a person being arrested for driving without a license and being taken down to the jail and being booked and then as would occur with anybody else in that situation immediately released.

So the situation does occur with respect to individuals who have finished a sentence in jail and served the time but it also occurs fairly commonly in situations where individuals would be processed very quickly and that the police department have their fingerprints taken to make sure that they are what they say they are and they don’t have other outstanding warrants, and then would be quickly released or in situations in which individuals have proven to a judge that they’re not a flight risk and that they’re not a threat to public safety and they’re eligible for release on bond.

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Those are the situations in which a detainer is applied or is attempted to be applied by ICE and the fundamental legal issue there Bob is really the Fourth Amendment and we don’t as a country arrest people and deprive them of their liberty unless there is probable cause that that person has committed offense and that’s a hallmark of our Constitution and it is something that applies to all people in the United States.

But even if you believe that what you really cared about is that are applied to citizens, it is in place in part because ICE doesn’t know — the good reason why it applies to all peoples because ICE doesn’t know a lot of times who is a citizen and whose not and they have issued hundreds of erroneous detainer requests on US citizens.

We just got a ruling yesterday on a case that has been going on for years out of Rhode Island. The named plaintiff that we represent is Ada Morales and as the judge noted in this decision, he said that the facts of the case are disturbing on many levels. The fact that a United States citizen was held in prison on an erroneous immigration detainer without probable cause for even one night should concern all Americans.

And that the 24-hour illegal detention revealed that dysfunction of Constitutional proportion at both the State and Federal level and unilateral refusal to take responsibility for the fact that the United States citizen lost her liberty due to a baseless immigration detainer through a no fault of her own.

And this kind of stuff has been going on for years, and in recent years has been litigated across the country, and I think quite frankly it’s cavalier for Matt to say that these things don’t really cost law enforcement much of anything. The litigation has imposed one cost on people’s constitutional rights are damaged, but more fundamentally beyond those cases that are brought before courts, every study that’s been done around the country in a diversity of localities have shown that when you multiply these ICE detainer requests in some localities by the dozens and in some places by the hundreds and in many places by the thousands per year, and you’re asking localities to hold individuals for an additional 48 hours while ICE investigates the status and decides whether they want to come and pick them up, those costs has been founded in places like Miami in the millions and in a place like California at the state level and the tens of millions of dollars a year, this is nothing.

But I think that what has really driven sheriffs and law enforcement officials across the country in opposing blindly accepting ICE detainers practices hasn’t even so much been the cost but their oath of office to uphold the Constitution and that’s why when Matt says what’s at issue is the rule of law we can all agree on that and the rule of law that sheriff’s are standing up for and that we’ve been standing up for in this issue is the Constitution.

The Fourth Amendment which protects all against unreasonable search and seizure and from being arrested and locked away without cause and the Tenth Amendment which gets to the other issue of whether or not localities are in fact following the law or not. The Tenth Amendment of United States limits the federal government’s ability to mandate that states take a particular action including in the area of federal immigration law enforcement investigations in order to enforce a federal statutory or regulatory scheme.

And it’s just real plain and simple that states have and localities have every right to decide not to invest their own resources and their own participation in enforcing Federal Immigration Laws. This is not a controversial legal proposition. It’s pretty basic stuff and the campaign that has been undertaken by anti-immigration forces and Donald Trump to try and paint these localities as violating the law is either extremely misleading or extremely misinformed.

Bob Ambrogi:  Now Matt, I’ll give you a chance to respond to that in just a moment, but I need to take a short break here, so, listeners stay with us, we’ll be back in just a few moments to talk more about Sanctuary Cities.

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Bob Ambrogi: Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi and joining us today are guests Matthew J. O’Brien, the Director of Research at the Federation for American Immigration Reform (FAIR), and Jonathan Blazer, the ACLU’s advocacy and policy counsel, and on the date that we are recording this and I realize this show will be posted a little bit later, but on the day that we are recording this, President Trump has just signed an Executive Order with regard to Sanctuary Cities.  Matt O’Brien let me ask you, have you had a chance to – well, first of all, I guess that Matt I did get – I will promise you an opportunity to respond to the last point and maybe I should ask you if you want to do that first. Do you want to respond in the issue of the Constitutionality of this issue and the cost issue that was just discussed?

Matthew J. O’Brien: Sure, yeah. I’d like to respond to both of those. But I think first off to imply that this has been thoroughly litigated throughout the United States and it’s a set of the issue is just disingenuous. A number of the holdings that have come out of courts on this had been holdings with limited import out of federal district courts and it remains to be seen whether they’re going to survive Appellate review and I think that there have been a lot of instances of judges legislating from the bench and imposing requirements that just simply don’t apply to immigration.

Immigration law is civil in the Maine and unless you’re being charged with a Criminal Violation of the Immigration and Nationality Act, you are subject to the civil authority of the United States. Now 8 USC §1357 is pretty explicit that immigration officers are empowered to interrogate anybody they believe to be unlawfully present in the United States or not to have a right to remain in the United States. And the same statute also says that if an immigration officer has reason to believe that an alien is in the United States in violation of any such law or regulation is likely to escape before a warrant can be obtained for his arrest, but it can make a warrantless arrest and that’s just one aspect of a pretty broad warrantless arrest power.

As far as probable cause goes, it’s not civil standard, it’s a criminal standard, so while the Fourth Amendment does in fact prohibits unreasonable searches and seizures, the Supreme Court of the United States has consistently found that border searches and immigration related searches are in fact reasonable searches. So the situation with Ms. Morales is unfortunate, but we’re big country with 350 million people and occasionally you are going to have things that happen that are not legally correct, that’s why we have a legal system and the proof that the system works is that she won her case and prevailed. But the fact is to say that ICE issues hundreds of erroneous detainers. It is just silly, because the purpose of the detainer is ICE gets information from a local law enforcement agency saying, hey, we believe somebody is unlawfully present in the United States, or there’s a record entered into a Law Enforcement System and ICE gets a hit indicating that a person that they believe is an illegal alien or a person has violated their status by committing a crime is in the custody of a state or local agency. And they ask that the person be held so that they can actually determine what the person’s immigration status is and what other legal issues that may arise in the context of the person’s immigration status.

Are they an aggravated felon and all those sorts of things, and then, people are simply scooped up and removed without any further hearing. They get due process in immigration court, which is virtually unique in the United States that we do this. Most other countries in the world don’t. They leave it to Executive Branch Agencies who simply administratively deport people. So the aspect of this that is troubling is that the forces in favor of sanctuary cities are saying, hey, it’s okay to disobey Federal Law and oh by the way, we’re going to start adding a whole lot of requirements to immigration law that simply don’t apply.

As far as the Tenth amendment goes, Tenth Amendment requirement says that the states can’t be deputized and required to enforce federal law. They can be asked to do so.

So I don’t think that in any way prohibits cooperation between state and local authorities in the immigration context, nor does it make it inappropriate for local authorities who do wish to cooperate in immigration enforcement to do so, and as far as the cost issue that the fact is that there is a huge cost that is involved with crime and illegal immigration. FAIR estimates it at being $113 billion a year which is mainly borne by states and local authorities.

Jonathan Blazer: That’s a nonsense number. And it’s been debunked by several other sources.

Matthew J. O’Brien: Well, I don’t know if it’s completely brought by any reliable or non-partition sources.

Jonathan Blazer: Well, again I think —

Matthew J. O’Brien: But I think it’s a complete total fabrication to say this is straining the budget of Law Enforcement Agencies and these are very same Law Enforcement Agencies that take grant money from the federal government in the form of Homeland and Security and other grants. So I mean this is a foolish argument even with thousands of detainers being issued which I don’t know that ICE ever reached a massive number. This is part of law enforcement activities, it’s what agencies do. I mean in a lot of cases they reimburse for their expenses by the federal government. So these are just spurious argument.

Jonathan Blazer: They reimburse the pennies on the dollar, I think it’s clear.

Bob Ambrogi: Speaking of grant money from the federal government as I understand I have not seen the Order signed today. I take it Jonathan from your comments earlier that you have seen it and as I understand it, at least part of it that threatens to withhold federal funds from sanctuary cities. Somebody asked Jonathan, have you seen the Order and what are the concerns you have with it assuming you have some?

Jonathan Blazer: Yeah, I have seen the Order and I assume Matt that you have also.

Matthew O’Brien: Yes.

Jonathan Blazer: So I think it objurgates the issue you know even further. I mean it’s not – we were actually expecting the possibility that there would be a cleaner Order focusing on a particular legal mandate that Matt keeps talking about violating federal law. But again, like we can get back to it, there’s no federal law that actually obliges localities to hold individuals on detainers. They’re on their face of voluntary request and each court that has looked at it has said that they are in fact voluntary and nothing obliges over locality to enlist the resources to enforce them and hold individuals that’s been the whole reason why localities have been held liable around the country.

But what the Order says which is interesting is it cites one particular federal law. It’s the only law cited in here which is a federal law that was enacted in 1996. It’s sometimes referred to as the Federal Anti-Sanctuary Law and that’s really the only law in the book that anyone can point to and has absolutely nothing to do with the predominant practices that localities that provide equal policing services and protective policies are actually carrying forthwith that federal law says is that localities can’t enact a policy or practice that limits or restricts the sharing of information between that locality and federal immigration enforcement authorities about the immigration or citizenship status of an individual.

And many of these locality service diversity’s policies have painstakingly ensured that in their policies they make clear that nothing in the policy is intended to restrict information-sharing about a person’s citizenship or immigration status and the policies themselves have been carefully crafted to respect that one federal law on the book. Even though there’s some arguments that federal law itself might violate the Tenth Amendment, that hasn’t really been tested out.

So I would like to hear Matt’s interpretation of how a policy limiting holding an individual beyond their release date on the basis of an ICE detainer request or how a policy that LAPAD has had in effect since the late 80s avoiding questioning immigrants who are victims and witnesses to crimes around their immigration status actually violates that law. I think it’s telling that the Executive Order cites 8 USC §1373, again, and the only thing anybody can cite and the one that doesn’t really apply to these issues under debate now, and then says or, so that he’s directing the Secretary of Homeland Security and his Attorney General to do a review of any policies that are in violation there’s one federal law and to recommend funding penalties and to actually go ahead and sue those localities and also to join them from continuing this practices. He cites that that’s federal law and then he also says or which has stacked a statute policy or practice that prevents or hinders the enforcement of federal law.

This really flips it completely on its head. It is not localities or states obligation to assist in the enforcement of federal law. This is a piece of it that is just perfectly clear from the intent of the Tenth Amendment and all the jury —.

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Matthew J. O’Brien: That’s a very furious interpretation of federalism. I mean we are still in a Federal Democratic Republic and collaborative federalism has been the model for the history of the Republic. So I mean it’s disingenuous to suggest that localities are being held liable for this.

What’s happened is several courts has suggested that there might be liability but to the best of my knowledge no one has ever won a suit saying that, ICE held them without appropriate authority if they weren’t a US citizen.

Matthew J. O’Brien: Not true, not true.

Jonathan Blazer: That’s a little bit –

Matthew J. O’Brien: The case that sparked the detainer revolt in 2014, out of Clackamas County Oregon involved an undocumented immigrant who was held, the Fourth Amendment applies. And the recent case out of Texas, the Mercado case also involved plaintiffs who were undocumented immigrants.

What federal law is it? Can you point to the localities who are violating when they choose not to hold individuals beyond their release date on the base of an ICE detainer request? What is it?

Jonathan Blazer: Well, there’s the Personal Responsibility and Work Opportunity Reconciliation Act in the provisions for IRA IRA that essentially say that you can interfere with federal officials —

Matthew J. O’Brien: No.

Jonathan Blazer: In terms of the information exchange that’s required for them to do their jobs. So I already pointed to 8 USC §1357, which actually authorizes federal officials to engage in this. So the question is —

Matthew J. O’Brien: Federal officials are authorized to try, but what obliges localities to hold individuals in their jails on the basis of an ICE detainer request. 8 §1357, which was an IRA, IRA in 1996 in a different form says that you can’t impede the flow of information. How is not holding someone 31:41 detainer when ICE has informed you that they wish you to do so impeding the flow of information?

Jonathan Blazer: I am not understanding, see this is what happens is this is typically flipped and the question is really, when there is a specific statute authorizing the immigration authorities to arrest people for violations of immigration law, where is the problem with state and local authorities cooperating, because that’s how law enforcement works.

Matthew J. O’Brien: The statute authorizes them to arrest them with a warrant, unless under limited circumstances they have made the determination that it is impossible to issue a warrant due to exigency and there was just a huge class action case with the decision that came down, Moreno v. Napolitano, out of the Northern District of Illinois that effectively invalidated all detainers in effect in that entire district because it found that ICE had completely ignored the statutory requirement to determine whether or not a person is likely to escape before a warrant can be obtained, and instead, just we’re sending people out these piece of paper, piece of paper called detainers and seeing whether or not they could get localities to imprison individuals on the basis on those papers without a warrant.

Jonathan Blazer: Well, I think that’s a bit of an oversimplification.

Bob Ambrogi: Well, Matt, let me just ask you, do you see this as a matter of cooperation or do you see this is a matter of legal obligation on the part of local authorities?

In other words, is it that you believe that local authorities should voluntarily want to cooperate or that there is some legal obligation that’s imposed on them that mandates them to cooperate?

Matthew J. O’Brien: Well, I see there is both. I mean I believe that it’s a direct and deliberate interference with a federal official who’s going about their assigned duties. There doesn’t seem to me to be any reason other than the Fourth Amendment claims, which I think are utterly spurious. They’re all based on a probable cause requirement, which doesn’t apply anywhere else for a civil arrest.

Wherefore enforcement of in particular –

Jonathan Blazer: Not true. There is case law – there is plenty of case law about the probable causes applicability and civil cases. It’s all over these decisions.

Matthew J. O’Brien: Well, it’s probably these decisions –

Bob Ambrogi: Let’s – on that respond —

Matthew J. O’Brien: — Once again, we have a bunch of district court opinions from a bunch of judges who seem to be inserting things that don’t have anything to do with immigration enforcement. And you have clear statutory authority enabling the federal government to do this.

So what mystifies any of us that work on this side of the issue is when the federal government says, hey listen, we have the authority to arrest someone, please hold them until we can come and get them.

How’s that problematic?

Bob Ambrogi: Do you think the President got it right with this Executive Order, Matt? Are you pleased with this? Do you think he should have gone farther? What’s your take on this?

Matthew J. O’Brien: No, we’re very pleased with it. We think he got it right and we think that the threats that he’s going to withdraw federal funding is legitimate exercise of the presidential impoundment power. And I think that this will all be clarified and vindicated when the inevitable litigation comes up on this, because I think the Trump administration is going to prevail.

I mean, you simply can’t just pick and choose what laws you wish to enforce and then you can’t selectively apply legal requirements. I mean they either apply or they don’t. And in this situation, you’re talking about something that since the current Immigration Act was put into force in the 1920s, it’s been a settled issue that it is not a criminal procedure and that the criminal procedural protections do not apply.

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And most of the time the actions they’re taking, the reason that ICE started the detainers was to meet the reasonable cause requirements that are set forth in the Immigration and Nationality Act by documenting why they were asking that someone be held and what they were attempting to do.

And the statutes are pretty clear that ICE has the authority to try and determine what someone’s immigration status is. Here the states and cities that are participating in this foolishness are basically saying, well, we want you to look into this because you might find out that the person is subject to removal and remove them.

I mean that seems to me to be states and localities directly undermining federal legal authority. It doesn’t promote the rule of law and there’s absolutely no evidence of any sort that this somehow improves policing.

Jonathan Blazer: Well, police chiefs across the country disagree with you. The major cities Chiefs of Police Association disagree with that last minute policy.

Matthew J. O’Brien: No, but the National Sheriffs Association has been actually working directly with us and they agree with us on this. And the sheriffs are more often the people who are requested —

Jonathan Blazer: The National Sheriffs Association opposed the bills and Congress that would have penalized them. I think the National Sheriffs Association would like it if ICE goes and gets a judicial warrant and therefore they know that they’re holding somebody under due process of law and they are not held liable.

Matthew J. O’Brien: See this is the problem.

Jonathan Blazer: But they don’t want to be penalized by Trump.

Matthew J. O’Brien: ICE is not required by any of the statutes to get a judicial warrant. It’s a civil procedure, so the warrants for arrest under the INA issue from ICE itself, and the fact is that if ICE actually went into a court and applied for a warrant, there’s no legal basis for the court to grant that unless it’s for a criminal arrest pursuant to a violation of the Immigration and Nationality Act. When it is an immigration violation, it’s a civil procedure and there’s no judicial warrant requirement, whatsoever.

Jonathan Blazer: Immigration courts could issue such warrants. They make probable cause determinations about removability all the time, every day. 36:53 if your resource question and —

Matthew J. O’Brien: No, actually they don’t. Immigration courts are specifically prohibited from considering any kind of constitutional issues. There’s precedent on that and they wouldn’t have any authority to issue an immigration warrant because statutorily, they’re not constituted to do that. But why put that level of process into this when what we are talking —

Jonathan Blazer: To make sure people’s rights are not violated, they are not imprisoned that they’re not imprisoned unreasonably and that what happens — what has happened in these cases doesn’t happen to other individuals. And the case that came down yesterday —

Matthew J. O’Brien: You are talking about a selective amount of people who —

Bob Ambrogi: No, we are not, the ICE officer —

Matthew J. O’Brien: — who were detained without appropriate –

Bob Ambrogi: Let me try and get you one at a time, otherwise we can’t hear on the tape, so one at a time.

Matthew J. O’Brien: Sure. What about all the people who actually are unlawfully imprisoned in the United States and subject to removal proceedings, where is the –

Jonathan Blazer: ICE has told at its disposal to do its job and to pick up those individuals and localities with the policies that we are describing are not standing in the way, they’re just letting the federal government do its jobs. In the case the decision that came out yesterday, just to answer your point —

Matthew J. O’Brien: But they are deliberately abstracting the federal government in the course of attempting to do its job.

Jonathan Blazer: Not really, not really.

Matthew J. O’Brien: I think the problem with this is it’s a very disingenuous argument coming from the supporters of these policies. They simply don’t think that anyone should be removed from the United States. So they focus on a very small number of people who have a procedural recourse through the courts if they’re improperly detained, and they’re ignoring the large number of people that were successfully removed.

I worked for five years in the Institutional Removal Program with ICE with the State of New York, collaborates directly with the Department of Homeland Security to deport people who are in prison when their prison sentence comes up. So it —

Jonathan Blazer: Does it disturb you Matt that in the case decision that came out yesterday, it was reported that the ICE officer that improperly detained Ms. Morales and the same year that he did that, that over half of the detainers that he issued that year had to be withdrawn as erroneous. So does that bother you that ICE is getting it wrong so often that people are spending an extra two days in jail. And even in a good case scenario the people who are denied bail they can sit in jail for months. We have had clients in that situation who would have otherwise been released. Does that bug you being a former enforcement official?

Matthew J. O’Brien: No I think that’s 39:18 well because we don’t know what the detainers were withdrawn for. And without taking a look at the specific ones that could have been any number of problems or it could have simply been the pressure that gets put on the local authorities when they don’t want to comply with these because of the political issues that this has been made into.

But the fact is that the immigration laws exist, people violate them and they are subject to legal penalties for doing so. If you don’t like that; then try and get the legislation changed.

Bob Ambrogi: We are going over our time here and I need to cut this a little bit short, I did want to just ask coming back to the Executive Order that was signed, whether it does – what are the things we talked about, the opening of this show was this idea of defining what a Sanctuary City looks like?

(00:40:00)

Does this executive order help us at all there? Does it provide any kind of a bright line of who this order is speaking to?

Matthew J. O’Brien: No but I think that’s deliberate. I don’t think the federal government wants to define what a Sanctuary City is because it’s a non-existent legal concept. And so then the federal government just 40:19 itself up in definitions that are irrelevant anyways.

What this says is that —

Bob Ambrogi: Well, how does it know which cities it’s going to withhold funds from if it can’t define what constitutes a Sanctuary City. I mean how does it define the cities that are at risk of having federal funds withheld from them?

Matthew J. O’Brien: Well I think it was pretty clear about that. It says anyone that’s involved in interfering with the enforcement of immigration laws or refusing to cooperate with immigration enforcement authority.

Jonathan Blazer: Whoa. Yeah, according to Donald Trump and Jeff Sessions, anyone who’s interfering or refusing to cooperate or in any way prevents or hinders in their judgment whoa.

Matthew J. O’Brien: Well, I don’t think it’s in their judgment. I think it’s a legal standard.

Jonathan Blazer: There’s no legal standard there.

Matthew J. O’Brien: That is applied in the courts on a regular basis. I mean there are umpteen statutes and regulations that have to do with inappropriate interference with law enforcement authorities. And I think well, this was couched in the terms of information. It defies imagination that people in a federalist system can somehow be portraying this as some kind of a bad activity; it’s simply states and municipalities participating in the upholding of the federal law which they are doing in a myriad of other context.

Bob Ambrogi: Well no doubt we’re going to see a lot of litigation coming out of this, I would assume and going forward, but unfortunately, we are nearing the end of our time here and I do want to give each of you an opportunity to give your final thoughts and also let our listeners know how they can follow up with you.

So, let me just turn to Jonathan Blazer from the ACLU and ask you your final thoughts.

Jonathan Blazer: Sure. I appreciate being invited onto today’s call. Looking at the order that President Trump just released, it’s really clear, he can’t force localities to enforce his mass deportation plans and he can’t legally carry out a threat to broadly defund cities and states that protect people’s rights for that regard to immigration status.

Congress has never directed the President to defund states and localities to stay clear of the deportation business. And his recent Executive Order really cites no statutory authorization to do so in a way that applies to anything that’s going on.

More importantly maybe if Congress did enact such a law, it would still likely be struck down as unconstitutional since you would effectively coarse and commandeer state and local governments to carry out federal policies in violation of the Tenth Amendment and the Principles of Federalism.

He may hope that cities buckle under his threat, but the truth is that many cities and local law enforcement officials have been reaffirming their protective policies and preparing to defend them with legal advice in hand. And if listeners are interested, last week New York’s Attorney General issued very helpful guidance recounting the state of law in this area addressing some of the core legal issues and recommending model policies.

I think that is one of many efforts that will contribute towards local law enforcement officials drawing a line in the sand here and insisting that they are not Donald Trump know what policing is necessary in order to protect the public safety of their communities.

Bob Ambrogi: Excellent. How can our listeners find more about your work or follow up with you if they want to do that?

Jonathan Blazer: We have a lot of information on this and other civil liberties issues at  HYPERLINK “http://www.aclu.org” www.aclu.org.

Bob Ambrogi: Thank you very much Jonathan. And Matt O’Brien, you get the final word today.

Matthew J. O’Brien: Thank you. This is simply an effort to try and legislate away immigration laws from the bench. It still remains to be seen how a lot of these issues are going to be resolved and FAIR thinks that this Executive Order was a significant step forward. It’s an exercise of President’s impoundment power; that power has been upheld in numerous circumstances.

Probably the best example was the way that the government went about implementing the 55 mile per hour speed limit. And it’s an interesting area of law because there’s actually very little case law on it because the cases are pretty quickly resolved and favor the presidential exercise of the power.

So there’s certainly legitimate debate about what type of immigration policies that the United States should have and how those should be implemented but in a federal system like we have, it’s just inappropriate to say that we should attack the immigration laws by lawsuits that encourage judges to legislate from the bench, that’s not an appropriate way to deal with the situation. All that it has done is, it has created a mess and it has diminished national security.

(00:45:03)

And the fact is people are subject to removal if they unlawfully enter the country or if they commit crimes while they are present in the United States. Those are legitimate laws that have been on the books and the biggest problem that we’ve had is, we haven’t been enforcing the authorities did actually exist in a way that defends the interest and protects the national security of the country.

And FAIR has a significant amount of information on this on their website which is  HYPERLINK “http://www.fairus.org” www.fairus.org. And we also have a blog which is  HYPERLINK “http://www.immigrationreform.com” www.immigrationreform.com and there are a number of different pieces on a blog there that address these issues on a daily basis. And I have an author page there, if anyone wants to read about what I’ve written in the past about all of these issues.

Bob Ambrogi: Thank you very much. Well, we’ve been speaking today with Jonathan Blazer; the Advocacy and Policy Council at the American Civil Liberties Union and Matthew O’Brien; the Director of Research at the Federation for American Immigration Reform. Thank you both for taking the time to be with us and for your thoughtful and informed comments on this issue. I really appreciate it.

Matthew J. O’Brien: Thank you for having us.

Jonathan Blazer: Yes, thank you.

Bob Ambrogi: And that brings us to the end of another show. This is Bob Ambrogi, on behalf of J. Craig Williams and everybody at the Legal Talk Network, thanks for listening. Join us next time for another great legal topic, when you want legal, think Lawyer 2 Lawyer.

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Outro: Thanks for listening to Lawyer 2 Lawyer, produced by the broadcast professionals at Legal Talk Network. Join J. Craig Williams and Robert Ambrogi for their next podcast, covering the latest legal topic. Subscribe to the RSS feed on  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com or on iTunes.

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