Differences of Opinion Over What a Sanctuary City Is

(Tyler Arnold, Watchdog.org) While Republican lawmakers in Harrisburg are pushing a bill that would crack down on sanctuary cities and counties in the commonwealth, some western Pennsylvania localities potentially targeted by the measure are complaining that they are not sanctuaries for illegal immigrants.

“I think it’s all screwed up,” Erie County solicitor Marcia Haller told Watchdog.org.

The Pennsylvania Senate passed a bill Feb. 7 that would make sanctuary locations ineligible for a state law enforcement grant program and bar them from profiting from the sale of state surplus property. The bill would also make “municipalities of refuge” liable for damages done to a person or property if the perpetrator is an illegal immigrant who was released despite a detainer request.

The measure defines a sanctuary as “a municipality that permits, requires or requests the release” of someone already in custody for whom immigration officers have a “civil immigration detainer request.”

But that doesn’t come close to settling the question for officials in those counties.

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The authors of the Senate bill cited a list from the Center for Immigration Studies, which used data from a study by law students at Temple University report, in determining the criteria for defining a sanctuary city.

But Senate spokeswoman Jennifer Kocher said that this does not necessarily mean every cited county would fall under the law’s definition.

Meanwhile, three of the counties — Butler, Clarion and Erie — are catching flak they say they don’t deserve.

Haller said Erie County follows current law, and argues that the Senate bill is too vague.

She said the different types of detainer requests are one cause of the confusion.

An I-247 request, for example, seeks detention of an illegal immigrant by local law enforcement for up to 48 hours. However, if the prisoner is taken to a county jail by a Border Patrol agent, they can be held indefinitely, she said.

Haller notes that the I-247 is a “request, not a legal mandate.” In Erie, the policy is if ICE fails to arrive in 48 hours, the person in custody would be released. But, she added, ICE always arrives within 24 hours and has never had any conflict with the county.

Haller says the CIS/Temple list wrongly includes Erie (which changed its policy after the report came out), and she cites a pair of Obama-era ICE reports on declined detainers that does not include Erie County.

Officials in Clarion and Butler counties said they were similarly confused about being on the CIS/Temple list, because they were also not on the ICE lists.

The problem for the counties: The Senate legislation would create its own criteria, independent of federal criteria, making one’s presence on or absence from any ICE list irrelevant. Kocher said a state list would be compiled based on the definitions in the bill — if the measure becomes law.

The Pennsylvania Senate passed the sanctuary bill with unanimous Republican support and the backing of a handful of Democrats.

The next stop is the state House, where Republicans have an overwhelming majority.

Democratic Gov. Tom Wolf has expressed concerns about the bill, but has not said whether he would veto it.

Request v. mandate

Butler County Solicitor Michael English said his county is trying to comply with immigration law, but worries about liability when a detention proves unwarranted.

He cited Galarza v. Szalczyk, in which the U.S. Court of Appeals for the Third Circuit ruled that Lehigh County violated Ernesto Galarza’s constitutional rights when it held him on an ICE detainer only. Galarza, an American citizen, was arrested on drug charges, but held based on an ICE detainer that was later dismissed.

Galarza sued, claiming that as a citizen he was not subject to the detainer, had never been charged and thus should have been set free.

The U.S. Court of Appeals for the Third Circuit agreed, ruling that Lehigh County violated Galarza’s constitutional rights because the county is permitted to treat ICE detainers as requests and not mandates.

English said that while the county’s detention policy is intended to comply with the ruling, Butler will “otherwise cooperate fully with ICE in their investigations.”

Like Haller, English says Butler County has never shown up on any ICE list of non-cooperating jurisdictions. But he said the policy might be tweaked — for clarification, not correction — if it would help avoid confusion with any criteria the state legislation might create.

“The substance of the policy, that the county will fully cooperate with ICE, short of taking any action that would violate anyone’s constitutional rights, will remain the same,” English said.

Clarion County officials also say they are just following the law.

“Clarion County is not a sanctuary county because we have never enacted an ordinance declaring us as such,” Clarion County Commissioner Wayne Brosius said, although that is not one of the criteria included in the bill for determining sanctuary status.

But Clarion refuses to hold individuals on ICE detainers alone, he said. It also requires that a judge issue commitment paperwork showing that they are charged with a crime.

“This decreases the liability of the county and its taxpayers,” Brosius said, a concern similar to that voiced by English, based on what happened to Lehigh in the Galarza case.

After President Donald Trump issued an executive order aimed at ending federal grants to local governments that refuse to cooperate with federal immigration authorities, Brosius said he checked whether Clarion was on any federal list.

He said it wasn’t.

Nevertheless, Brosius said if Clarion County’s federal or state funding were jeopardized by the executive order or a new state law, changes in detention policy might be considered at the next prison board meeting March 9.

The sanctuary locations noted in the ICE documentation in Pennsylvania are Philadelphia, Abington, Lehigh County, Montgomery County and Chester County, all in the eastern part of the state.

‘Obliged to honor’

Homeland Security Secretary John Kelly said earlier this month that he didn’t “have a clue” how to define a sanctuary city.

“I promise you we’ll work with you and will make no Draconian moves until I fully understand what a given locale might be doing or not doing,” he told local officials during a border tour in San Diego.

But for Butler and Clarion, it all comes down to definitions.

CIS argues that a sanctuary municipality is one that “obstruct[s] immigration enforcement and shield[s] criminals from ICE” in some way — whether it be by refusing to comply with detainers or causing other obstructions.

The counties say, if they’re not on an ICE list, they’re not a sanctuary.

CIS communications director Marguerite Telford told Watchdog it is important to note that ICE is not going around and randomly checking an individual’s immigration status, but that detainers affect only those who have been arrested.

Questioning the Third Circuit’s ruling in the Galarza case, CIS argues that counties and cities are required to comply with an ICE detainer.

“The majority opinion asserts that because immigration is a federal responsibility, state and local governments cannot be obliged to honor immigration detainers,” CIS contends. “That makes no sense at all.”

The issue will likely have to be settled by the Supreme Court. For now, the Third Circuit ruling is binding only within the Philadelphia-based circuit, which includes Pennsylvania, Delaware and New Jersey.

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