In recent years, there has been growing pressure on state and local law enforcement agencies to cooperate with and take on federal authorities and responsibilities concerning immigration enforcement. With the growing number of sanctuary jurisdictions, or areas that define or limit their roles regarding immigration enforcement, since 2011, the 114th Congress introduced several legislative proposals — some of which threaten to cut federal grants — if the respective jurisdictions limit their cooperation with Immigration and Customs Enforcement (ICE) regarding its enforcement.
In the 1996 Immigration and Nationality Act, section 287(g) permits the Secretary of the Department of Homeland Security (DHS) to delegate certain immigration enforcement functions to state and local enforcement agencies.
However, since the Sept. 11 terrorist attacks, a new urgency in American defense has catalyzed increased attention and spending in criminal alien programs. From Fiscal Year 2004 to FY 2016, funding for all criminal alien programs has increased from $6 million to $341 million. Furthermore, prior to the 9/11 attacks, the former Immigration and Naturalization Service had fewer than 2,000 immigration agents in the US. But since INS became ICE, the number of interior agents has increased to over 7,000.
While immigration enforcement is a federal responsibility, the increased pressure to identify, apprehend, detain and deport unauthorized immigrants has equally pressed the cooperation of local and state authorities. To help ICE apprehend the most prioritized unauthorized immigrants — namely “individuals prioritized for removal [who] must either be threats to national security, border security, and public safety” — access to the identities, biographies and biometrics of respective individuals in state and local jails and prisons would assist federal immigration agents in identifying and removing unauthorized immigrants.
The pressure for state and local agencies to cooperate with federal agencies has precedent, as at “the end of 2014, noncitizens accounted for 11.2 percent of the 209,561 individuals incarcerated in federal prisons, 3.5 percent of the 1,268,740 individuals incarcerated in state prisons and 4.6 percent of the entire incarcerated population,” according to the Department of Justice (DOJ).
Proponents of local cooperation with ICE believe collaborative measures would make for more effective immigration enforcement, especially in sharing information about prioritized, unauthorized individuals criminally charged and incarcerated in state and local institutions.
However, the rise of sanctuary jurisdictions has highlighted some of the critiques of cooperation of state and local authorities with federal enforcement agencies. Supporters of sanctuary jurisdictions argue that separation between federal and municipal responsibilities, in this case immigration, are needed to avoid the disruption of local services by“diverting local law enforcement personnel to handle immigration enforcement, and community policing concerns.”
Although there are various sanctuary policies, common ones include limiting both law enforcement agents and cooperation with ICE in enforcing immigration law, as well as restricting some types of information that can be shared about an alien with federal law enforcement.
Congress has responded to the rising prominence of sanctuary jurisdictions with various legislative proposals. For instance, Congress passed HR 3009 on July 23, 2015. This bill would have penalized state and local institutions that restrict information gathering or communication with federal immigration enforcement agencies pertaining to an individual’s immigration or citizenship status by withholding funding for three DOJ grant programs: the State Criminal Alien Assistance Program, the Community-Oriented Policing Services Program and the Edward Byrne Memorial Justice Assistance Grant Program.
The Senate has also considered S 3100 and S 2193. S 3100 would have withheld federal grants for public works, economic development, planning, administrative expenses, training, research and technical assistance from sanctuary jurisdictions. S 2193 would have increased maximum prison terms for unauthorized aliens by setting a five-year maximum sentence for unauthorized immigrations with felony convictions after unlawfully reentering two or more times, and a 10-year maximum sentence on unauthorized immigrations caught reentering three times.
However, the Senate failed to pass a cloture motion to pass either bill.