Sanctuary Policy:
Notice of Legal Concerns & Possible Liability

 

 

Friends of Immigration Law Enforcement (FILE), along with a variety of legal experts, are of the opinion that no state, county, city and county, incorporated city or town, school district, special improvement district, or any other district, agency, instrumentality, or political subdivision of a state organized pursuant to law (hereinafter, "any public entity") may adopt any policy, by edict or in practice, that prevents, hinders, or discourages an agency, department, agent or employee of said public entity from contacting Federal immigration authorities to enquire about the legal status of any non-citizen, or to report violations of Federal immigration law by any non-citizen.

 

After careful consideration, FILE has determined that any such policy (hereinafter, "sanctuary policy"):

 

1)      violates Federal law,

2)      violates Constitutional precepts,

3)      exposes the public entity to civil liability, and

4)      is irresponsible public policy.

 

 

Federal Statutory Violation

 

Federal law clearly prohibits all state and local authorities from adopting any policy that "prohibit[s], or in any way restrict[s], any government entity or any official within its jurisdiction from sending to, or receiving from, the Immigration and Naturalization Service information regarding the immigration status, lawful or unlawful, of any person."[1]  Thus, any state or local authority that adopts any form of sanctuary policy, whether de jure or de facto, is in violation of Federal law.

 

Moreover, since sanctuary policies are instituted exclusively for the purpose of allowing illegal aliens to reside in a community without fear of deportation, any government entity that adopts such a policy also is aiding and harboring illegal aliens in violation of Section 274 of the Immigration and Nationality Act, which provides criminal penalties for any act that "encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law."[2]

 

According to Federal law, the terms "encourage" and "induce" include actions that permit illegal aliens to be more confident that they may continue to reside with impunity in the United States, or actions that offer illegal aliens "a chance to stand equally with all other American citizens."[3]  To prove that a state or local government agency "encouraged or induced" illegal aliens, it only needs to be established that the agency knowingly helped or advised the aliens, or emboldened them, or made them more confident in their continued illegal residence in the United States.[4]

 

The courts have held that INA §274 is to be broadly construed both as to the persons subject to criminal liability under the statute,[5] and as to the types of activities covered therein. [6]

 

Finally, Section 401 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) [7] (as amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996) (IIRIRA) [8] prohibits non-qualified (i.e., illegal) aliens from receiving most "Federal public benefits."  Any policy that provides sanctuary or is constructed for the purpose of doling out city services regardless of the immigration status of the recipient explicitly violates this provision of federal law insofar as the service-providing agencies receive federal funding.

 

Furthermore, the Second Circuit Court of Appeals has rejected New York City's challenge[9] to section 434 of PRWORA[10] and section 642 of IIRIRA.[11]  The court's action leaves in place those statutory provisions that bar federal, state, and local governmental entities from prohibiting voluntary disclosure to the Immigration and Naturalization Service of information about immigration status ("communications provisions").

 

 

Preempted on Constitutional Grounds

 

The courts have long recognized that by Article I, Sec. 8 of the U.S. Constitution, Congress has "plenary power" over all aspects of immigration law, including "the right to provide a system of registration and identification" for aliens, because "the entire control of international relations" is invested in the national government.[12]  Courts have repeatedly held that no governmental authority may establish any policy that relates to immigration other than Congress and authorized federal agencies, and that the "[p]ower to regulate immigration is unquestionably exclusively a federal power."[13]

 

Thus, an official local policy to provide sanctuary to aliens present in the United States in violation of Federal law improperly annexes powers to a local entity that are rightfully Congress' and the policy is therefore unconstitutional.

 

In a decision striking down a Pennsylvania alien registration statute, the U.S. Supreme Court held that the "Federal Government...is entrusted with full and exclusive responsibility for the conduct of affairs with foreign sovereignties[, and that o]ur system of government is such that the interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires that federal power in the field affecting foreign relations be left entirely free from local interference.  The Court ruled that "where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation . . . states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations."[14]

 

Since no state or local entity may make any rule, regulation or policy that conflicts with Federal immigration policy, sanctuary policies are preempted on constitutional grounds.

 

Furthermore, such a policy has also been determined unconstitutional specifically in relation to public benefits because it violates "the exclusive federal power over the entrance and residence of aliens."[15]

 

 

Civil Liability Exposure

 

Entering the United States without inspection (illegal entry) is a criminal offense under 8 U.S.C. 1325.  Providing public services to such an alien in "knowing and reckless disregard" of the alien's illegal status amounts to aiding and abetting a crime, and is a criminal violation in and of itself.  By the INA §274(a) "aiding and abetting" language,[16] the distinction is eliminated between principles and accessories in alien smuggling crimes.  And courts have held that aiding and abetting also relates to conduct while the illegal alien is in the United States.[17]

 

Furthermore, aiding and abetting an illegal entrant in his continued illegal residence in the United States constitutes a dangerous and unreasonable risk to the health and safety of the public, since, among other reasons, illegal entrants are not subject to the criminal background and health checks legal entrants must undergo before entering the United States. 

 

For these reasons, any de jure or de facto sanctuary policy can be said to be conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results, and, therefore, the public entity sanctioning such a policy, and its officers or representatives, may not enjoy protection under governmental immunity statutes.[18]

 

Consequently:

 

If any illegal entrant, whose illegal presence in the United States can be shown to have been encouraged, induced, or aided and abetted by any public entity, commits a crime while illegally present in the United States, during the commission of which an American citizen suffers personal injury, FILE will attempt to help the injured party bring a personal injury suit against the public entity, and, to the extent allowed by law, against its officers, individually and severally, for damages.

 

 

Irresponsible and Unpopular

 

Any public entity or institution that adopts a sanctuary policy - whether such policy is de jure or de facto - subverts Federal immigration law as set by the people's elected representatives in the Congress of the United States, undermines the democratic process through which our federal system accomplishes its rule and the laws upon which the Republic is founded, and compromises the safety and security of the American people.[19]  All sanctuary policies, explicit or implicit, for these and the reasons set out above, are irresponsible and counter to the wishes of the American people.[20]

 

We insist that any public entity that currently has in place, in any form whatsoever, any sanctuary policy immediately rescind such policy and take all due care in implementing the kinds of mechanisms necessary to ensure reasonable and duly diligent compliance with Federal law.  And, in all good faith, we caution any public entity that currently has in place a sanctuary policy, or is considering such a policy, that there are serious legal concerns and liability issues attached to such.