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New Jersey Cities Continue to Resist Federal Demands to Assist in Immigration Enforcement

George Washington BridgeThe recent presidential election has brought a massive amount of uncertainty for immigrants, prospective immigrants, their employers, and their families. The uncertainty ranges from the new president-elect’s rhetoric regarding deportations to the future of various permanent and temporary visa programs. The extent to which local governments participate in immigration enforcement potentially affects all immigrants. The U.S. Constitution gives the federal government exclusive authority over immigration, but enforcement efforts have expanded to include local law enforcement. Many local officials have pushed back in recent years, stating that they will not actively participate in federal immigration enforcement. Multiple court decisions support this position, but it remains controversial. Cities that have taken this position are often known as “sanctuary cities,” a term that can be both descriptive and pejorative, depending on the circumstances.

Part of the problem with addressing this issue is the lack of a clear definition of a “sanctuary city.” It does not mean that anyone in such a city is “safe” from immigration enforcement. At a minimum, it means that local officials will not cooperate with simple requests from a federal agency like Immigration and Customs Enforcement (ICE). Federal immigration officials routinely review county jail rosters to check for possible immigration violations, and they place “detainers” on people they believe may be undocumented or otherwise in violation of federal immigration laws.

Congress has the sole authority “to establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl. 4. This means that the federal government has exclusive jurisdiction over immigration questions. Immigration proceedings are federal civil matters. Local courts therefore have no jurisdiction to adjudicate such questions with regard to inmates in their custody. A detainer amounts to a request that local law enforcement continue to hold a person beyond the time they would otherwise be released, until ICE can take custody of them. Many local officials are saying that they will not comply with such requests unless they are accompanied by additional legal authority, such as a warrant or court order.

The U.S. Supreme Court has held that Congress cannot create obligations for local law enforcement agencies. Printz v. United States, 521 U.S. 898 (1997). Federal immigration law does not, however, specifically direct local law enforcement with regard to immigration enforcement. Instead, the relationship between federal immigration authorities and local law enforcement has developed informally, such as through the use of detainers. The Third Circuit Court of Appeals has ruled that detainers are not binding on local law enforcement under the Tenth Amendment’s “anti-commandeering principles.” Galarza v. Szalczyk, 745 F.3d 634, 636 (3rd Cir. 2014); see also Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317, order (D. Or., Apr. 11, 2014).

Several cities and counties in New Jersey have publicly stated policies that fit the concept of “sanctuary cities.” Camden County, for example, does not follow ICE detainer requests unless they are accompanied by a court order or warrant. Jersey City enacted an ordinance in 1996 that barred the use of city resources “to identify, persecute, apprehend or deport” undocumented immigrants. The mayors of Newark, New York City, and other cities have taken similar positions.

Immigration lawyer Samuel C. Berger advocates for the rights and interests of immigrants and prospective immigrants, their family members, and their employers in Northern New Jersey and New York City. Contact us today online, at (201) 587-1500, or at (212) 380-8117 to schedule a confidential consultation with a member of our experienced and knowledgeable team.

More Blog Posts:

New York City Passes Laws Further Restricting Local Law Enforcement’s Cooperation with Federal Immigration Detainers, New York & New Jersey Immigration Lawyer Blog, October 29, 2014

Immigrant Advocates, Politicians Call for Cities to Reject Federal Immigration Detainers, New York & New Jersey Immigration Lawyer Blog, August 20, 2014

Immigration Detainers are Not Binding on Local Law Enforcement, According to Third Circuit Court of Appeals, New York & New Jersey Immigration Lawyer Blog, March 5, 2014

Photo credit: Beyond My Ken (Own work) [GFDL or CC BY-SA 4.0-3.0-2.5-2.0-1.0], via Wikimedia Commons.