The Next Step for Sanctuary States

Guest blogger: Jane Montañez, law student, University of San Francisco

Federal immigration enforcement relies heavily on cooperation with state law enforcement. The most commonly known method being law enforcement officers/deputies holding noncitizens they find for U.S. Immigration and Customs Enforcement (ICE) to pick up and transfer to detention center or other U.S. Department of Homeland Security (DHS) facilities. Many states, counties, or cities, often called sanctuary states/counties/cities respectively, have banned the practice of local law enforcement cooperation as this has the affect of immigrant populations being wary to report crimes to or otherwise rely on the state to protect them; when people cannot trust law enforcement it leaves them easy targets to criminals and upends usual protections.[1]

Another source of deportations involves noncitizens who are convicted of qualifying state crimes. Immigration and Nationality Act (INA) defines deportable noncitizens as:[2]

“Crimes of moral turpitude [(CIMT)]

Any [noncitizen] who–

(I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of [a noncitizen] provided lawful permanent resident [(LPR)] status under [8 U.S.C. §1255(j)] after the date of admission, and

(II) is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable.

(ii) Multiple criminal convictions

Any [noncitizen] who at any time after admission is convicted of two or more [CIMTs], not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial, is deportable.

(iii) Aggravated felony [(AF)]

Any [noncitizen] who is convicted of an aggravated felony at any time after admission is deportable.”

Often what may fall under these categories takes up the majority of a noncitizen’s immigration defense post-conviction of a state crime. The Supreme Court recently required all counsel to noncitizens charged in criminal court to give informed consent to the immigrant of any potential consequences that may result from taking a plea deal or getting convicted of a state crime.[3] Failing to do so not only is malpractice, but it also may devastate a noncitizen’s life in the U.S. as they will have unknowingly opened themselves up to deportation. While it is important that noncitizens are made aware of the potential of deportation proceedings that could follow the mandate really does nothing else for them.

            Progressive prosecutors in San Francisco county, and other similarly minded areas, have exercised their discretion by either going back into criminal court to change criminal convictions to non-removable offense or entirely avoiding charging noncitizens with potentially removable portions of the penal code. It is important to note that nothing legally requires prosecutors to aid noncitizens in avoiding deportation. This is clearly a more favorable approach than simply being notified of looming removal proceedings in a later immigration court. Notwithstanding federal prosecutors (AUSA—an Assistant United States Attorney) could afford the same protection to noncitizens, but none truly have; also, the main source of federal prosecutions of noncitizens is for those who entered without inspection and are found near the border. All of this proves the main power to stop most deportations is in the hands of state prosecutors.

            As it is malpractice for defense attorneys to fail to warn a noncitizen, why simply also make it malpractice for a state prosecutor to charge a noncitizen with a deportable offense (or fail to amend a previous charge/conviction). As discussed supra it is helpless to require a defense attorney to warn a noncitizen if they cannot do anything else to help. States which seek to protect immigrant populations from deportation should build on existing law by amending their common law to include negligence for official conduct by their prosecutors when dealing with noncitizens. To surely be a sanctuary, states must protect their most vulnerable populations. In order to make major immigration reform states must make criminal justice reform. Whether that means changing the criminal law to entirely protect immigrant’s or changing the prosecutorial dynamic, states have the power to change immigration enforcement. States are allowed for the most part to establish their own common law. State criminal law certainly has much more cognizable federal implications stemming mostly from constitutional quarrels when concerning a defendant’s rights, thus state common law is the best avenue for change. Only a few times has the Supreme Court usurped power from state’s common law when it has no business doing so.[4]

A finding by a state court making it negligence for official action of a state prosecutor which results in the real deportation of a noncitizen or the potential for such, regardless of conversations of what the immigrant did, will for the most part instantly end deportations as the result of criminal convictions in the state. While the hard work of finding equivalent charges prosecutors will be grueling, who better to manage then prosecutors themselves. Rather than larger public defender’s offices being now almost entirely required to have an attorney on staff who solely deals with immigration, despite being entirely reliant on prosecutorial discretion to resolve such issue, why not the district attorney’s office where the charging documents are sourced from. Unlike substantial immigration reform this would only implicate a state and is entirely within its own right to do so. This would not supplement immigration laws nor conflict with them thus avoiding any preemption claims as it is solely state common law or tort law.[5] While this would not be the be all end all to deportations via state convictions it would at the very least authorize suits against prosecutors, assuming they are not judgment proof, and make them think carefully about infringing on immigrant rights.

[1] Armenta, Amada, and Isabela Alvarez. “Policing immigrants or policing immigration? Understanding local law enforcement participation in immigration control.” Sociology Compass 11.2 (2017).

[2] INA §237 and or 8 U.S.C. §1227

[3] Padilla v. Commonwealth of Kentucky, (2010) 559 U.S. 356

[4] The Supreme Court should have no say in a state’s creation of its own common law so long as it doesn’t touch the U.S. Constitution. Despite that seemingly obvious claim, in BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996), the United States Supreme Court limited punitive damages under the Due Process Clause of the Fourteenth Amendment for state common law claims.

[5] In Arizona v. United States, 567 U.S. 387 (2012) Arizona attempted to supplement the federal immigration laws by making certain acts criminal which Congress considered and specifically avoided doing. Thus, the laws were struck down under preemption doctrine.

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