Since February, the Government can withhold funding of law enforcement agencies in states and cities that do not cooperate with U.S. immigration authorities. The decision is part of a long-lasting debate over the existence of “sanctuary cities”. What exactly are those cities and what lies behind this dispute over government funding? 

What are sanctuary cities? 

For centuries, refugees have used sanctuary as a protection from persecution or deportation.  Churches were sanctuaries dating back to the Middle Ages.

A similar system was introduced in the U.S. in the 1980’s, during the so-called sanctuary movement. The term itself isn’t precise, and the proper term should be community policing city. In Europe, sanctuary cities are those which openly welcome immigrants and foster a culture of hospitality through education, housing or cultural integration. Examples of such cities include Sheffield (UK), Barcelona (Spain) or Lesbos (Greece). 

The idea underlying sanctuary cities in the U.S. is crime prevention.

Undocumented immigrants should feel safe when reporting a crime. If they were under threat of being deported, they often wouldn’t come forward or be a witness in a trial. Victims are protected.  Sanctuary cities therefore limit their cooperation with federal law enforcement agencies such as the Department of Homeland Security (DHS). They do not exchange of information about undocumented immigrants with federal agencies such as DHS, unless the foreigner committed a crime. When a foreigner is accused of a crime and is detained, sanctuary cities do not detain undocumented immigrants beyond the time allowed by criminal statute so that they can be further detained by Immigration and Customs Enforcement (ICE).  Exceptions are often made for serious crimes such as felonies, but not for drunk in public, for example.

Many states, cities, and counties apply some features of the sanctuary policy.

Among the most prominent are New York, San Francisco, and Chicago. Each of those cities has a different scope of “sanctuary policy”. As an example, New York recently permitted undocumented immigrants to obtain a driver´s licenses. 

The current administration does not agree with the sanctuary city policy 

The government has prioritized pursuing undocumented immigrants and expediting their removal. The administration considers the cooperation of state, local, and federal agencies essential in executing its mission of identifying and removing undocumented immigrants. 

President Trump made this policy clear in January 2017, when he issued an Executive Order that made sanctuary jurisdictions ineligible for federal grants. The order was successfully challenged in court as violating the separation of powers doctrine and the Tenth Amendment (which defines scope of federal powers). 

Consequently, former Attorney general Jeff Sessions imposed a set of conditions to the Byrne grants that effectively rendered sanctuary cities ineligible for federal funding. Sessions stated,

“from now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities…”.

Byrne grants are the biggest source of federal funding of state and local jurisdictions. The funding finance emergency services or drug prosecutors, among other things. The grants are named after a deceased police officer, Edward Byrne, who was killed in the line of duty while guarding the home of a Guyanese immigrant that was helping the authorities with a drug trafficking investigation. 

Legal dispute over Byrne grants

Many cities and states disagree with this policy because they do not want the federal government to interfere with local police powers.  They want witnesses and victims to come forward in police investigations.  None tolerate crimes by immigrants. Some cities have expressed outright disagreement with federal interference with the Federal government in local policing matters. 

As a result, several lawsuits have been filed against the government. During the past two years, federal appeals courts in Chicago, Philadelphia, and San Francisco have ruled against the federal government. 

On Wednesday February 26, the United States Court of Appeals for the Second Circuit in Manhattan, ruled for the first time during this dispute over Byrne grants in favor of the federal government. The judgement of the court confirmed that the government has the discretion to impose conditions when distributing grant money. Essentially, it’s up to the Federal government how it wants to distribute funds.

The lawsuit was filed by New York City, and the states of New York,  and New Jersey. They were joined by five other states: Connecticut, Massachusetts, Rhode Island, Virginia, and Washington. In those jurisdictions, Byrne grants will not be provided if they don’t meet the federal government conditions. Other sanctuary jurisdictions are not affected by this ruling. However, the affected states have indicated they would take further legal steps. 

The future of sanctuary cities

The dispute over sanctuary cities is part of a larger dispute, regarding control of local police powers. During February, several sanctuary cities in states such as New York, Illinois, Pennsylvania and California, have noticed an increased ICE activity. Law enforcement officials from border cities have been relocated to sanctuary cities to aid the enforcement powers of local ICE officials. Border Patrol Tactical  Units (BORTAC) have also been deployed to sanctuary cities.