President Trump released an executive order on his fifth day in office to support immigration enforcement and punish local governments that don’t comply with federal authorities, but the order was frozen by a federal judge in April. Here’s how these policies work.

In some so-called “sanctuary cities,” officials refuse to hand over illegal immigrants for deportation. Because jails are typically run by counties, rather than cities, county policies can matter more to immigrants.

Where are sanctuary counties?

An Immigration and Customs Enforcement compliance report obtained by the Immigrant Legal Resource Center showed that, in the 168 counties where most of the 11 million illegal immigrants live:

federal requests to hold

arrestees in jail due to their

immigration status

federal requests to hold

arrestees in jail due to their

immigration status

Estimated illegal immigrant residents

in each county

50,000

100,000

or more

10,000

25,000

Boston

New York

D.C.

New York City, where city police run the jail for five counties, is surrounded by suburbs where detainer requests are almost always accepted.

Chicago

Chicago’s Cook County declines detainer requests but none of its neighboring

counties do.

Dallas

El Paso

Austin

Houston

An estimated 1.4 million illegal immigrants live in Texas, but none of its county jails typically decline detainer requests.

San Francisco

Las Vegas

Los Angeles

Phoenix

San Diego

California has state laws that make it

difficult for jails to turn illegal immigrants over to federal officials, but its border counties still tend to cooperate with detainment requests.

Where are sanctuary counties?

An Immigration and Customs Enforcement compliance report obtained by the Immigrant Legal Resource Center showed that, in the

168 counties where most of the 11 million illegal immigrants live:

federal requests to hold

arrestees in jail due to their

immigration status

federal requests to hold

arrestees in jail due to their

immigration status

Estimated illegal immigrant residents in each county

50,000

100,000 or more

10,000

25,000

Chicago’s Cook County declines detainer requests but none of its neighboring

counties do.

Seattle

Boston

New York

Chicago

San Francisco

Denver

D.C.

Kansas City

Las Vegas

Los Angeles

Phoenix

San Diego

Atlanta

Dallas

El Paso

Houston

California has state laws

that make it difficult for jails to turn illegal immigrants over to federal officials, but its border counties still tend to cooperate with detainment requests.

Miami

An estimated 1.4 million illegal immigrants live in Texas, but none of its county jails typically decline detainer requests.

Where are sanctuary counties?

An Immigration and Customs Enforcement compliance report obtained by the

Immigrant Legal Resource Center showed that, in the

168 counties where most of the 11 million illegal immigrants live:

federal requests to hold

arrestees in jail due to their

immigration status

federal requests to hold

arrestees in jail due to their

immigration status

Estimated illegal immigrant residents in each county

50,000

100,000 or more

10,000

25,000

Seattle

Chicago’s Cook County declines detainer requests but none of its neighboring

counties do.

Boston

New York

Chicago

San Francisco

D.C.

Denver

New York City, where city police run the jail for five counties, is surrounded by suburbs where detainer requests are almost always accepted.

Kansas City

Las Vegas

Los Angeles

San Diego

Phoenix

Atlanta

California has state laws

that make it difficult for jails to turn illegal immigrants over to federal officials, but its border counties still tend to cooperate with detainment requests.

Dallas

El Paso

Austin

Houston

Laredo

Miami

An estimated 1.4 million illegal immigrants live in Texas, but none of its county jails typically decline detainer requests.

Federal officials must rely on local police to help enforce federal immigration laws, but the law doesn't require local authorities to detain illegal immigrants just because their federal counterparts make a request. In fact, federal courts across the country have found complying with the requests is voluntary.

“It’s a county’s policy around assistance with deportations that gauges how much at risk any immigrant is in terms of being filtered into this pipeline that Trump and company have promised,” said Kemi Bello, communications director at the Immigrant Legal Resource Center.

Trump’s executive order attempts to change this pipeline by directing federal immigration agents to target a broader group of immigrants for deportation. Previously, crime-based grounds for removal required a conviction. The order calls for the removal of those who “have committed acts that constitute a chargeable criminal offense” or pose a risk to public safety in the judgement of an immigration officer.

“It’s going to target more individuals who are undocumented who have had any sort of interaction with local law enforcement at all, including just an arrest,” said Phil Torrey, a lecturer at Harvard Law School who specializes in criminal and immigration law. 

Here’s how the deportations process usually works, and how it could change:  

A city police officer pulls someone over and arrests him or her for something unrelated to citizenship (such as drunken driving or disorderly conduct). Whether or not the city has a sanctuary policy …

... he or she is booked into the local county jail, which is usually run by the county sheriff’s department.

 

At the jail, his or her fingerprints are taken and sent to the FBI, which sends the inmates’ information to Immigration and Customs Enforcement. U.S. law requires this information sharing between local and federal law enforcement agencies.

 

If ICE finds that the inmate is undocumented, it submits a detainer request to the county jail. ICE typically asks jails to hold inmates an extra 48 hours after they would otherwise be released so they can get a warrant to begin deportation proceedings.

 

Under Trump’s new policy, ICE could begin deportation earlier in the process, before criminal proceedings are complete.

The Department of Homeland Security has said that complying with these requests is voluntary because keeping someone in jail without a warrant violates the 4th Amendment. So, what happens next depends on county policy.

 

If the jail is in a county with a policy of frequently declining these requests, the inmate is released once the criminal case is complete — if the he or she is convicted but doesn’t face additional jail time, if charges are dropped or if bail is met.

 

A Department of Justice inspector general report found that some jails will only comply with a detainer request when the inmate has prior felony convictions, gang membership or is on a terrorist watch list. Others reject every detainer request.

If the county typically complies with ICE requests, the inmate would stay in jail while ICE works to obtain an administrative deportation warrant.

If ICE obtains the warrant, they could pick up the inmate and transfer him to a federal prison. Or, the inmate could stay in county jail while he or she undergoes deportation proceedings. If so, the jail can request money from the Department of Justice to recoup part of the cost of detainment.

 

Eventually, the inmate could be deported.

A city police officer pulls someone over and arrests him or her for something unrelated to citizenship (such as drunken driving or disorderly conduct). Whether or not the city has a sanctuary policy …

... he or she is booked into the local county jail, which is usually run by the county sheriff’s department.

 

At the jail, his or her fingerprints are taken and sent to the FBI, which sends the inmates’ information to Immigration and Customs Enforcement. U.S. law requires this information sharing between local and federal law enforcement agencies.

 

If ICE finds that the inmate is undocumented, it submits a detainer request to the county jail. ICE typically asks jails to hold inmates an extra 48 hours after they would otherwise be released so they can get a warrant to begin deportation proceedings.

 

Under Trump’s new policy, ICE could begin deportation earlier in the process, before criminal proceedings are complete.

The Department of Homeland Security has said that complying with these requests is voluntary because keeping someone in jail without a warrant violates the 4th Amendment. So, what happens next depends on county policy.

 

If the county typically complies with ICE requests, the inmate would stay in jail while ICE works to obtain an administrative deportation warrant.

If the jail is in a county with a policy of frequently declining these requests, the inmate is released once the criminal case is complete — if the he or she is convicted but doesn’t face additional jail time, if charges are dropped or if bail is met.

 

A Department of Justice inspector general report found that some jails will only comply with a detainer request when the inmate has prior felony convictions, gang membership or is on a terrorist watch list. Others reject every detainer request.

If ICE obtains the warrant, they could pick up the inmate and transfer him to a federal prison. Or, the inmate could stay in county jail while he or she undergoes deportation proceedings. If so, the jail can request money from the Department of Justice to recoup part of the cost of detainment.

 

Eventually, the inmate could be deported.

These discrepancies can lead to confusion when neighboring counties — or cities within the same county — have different policies.

“That’s why immigration is a federal responsibility. You cannot have 3,000 different policies, it’s chaos,” said Jessica Vaughan, director of policy at the Center for Immigration Studies, which advocates reducing immigration levels.

Police and politicians in these areas say that honoring ICE detainer requirements could scare people away — they don’t want undocumented people to be afraid to contact the police if they need help. “They are relying on folks to not be afraid of the police to report crimes,” Torrey said. He also said Trump’s executive order will further discourage immigrants from contacting local police.

Discrimination is also a concern, according to the Immigrant Legal Resource Center. “We find this involvement of local jails really troubling — it really undermines the idea that the criminal legal system protects everyone when a police stop is a gateway to deportation,” Lena Graber, center attorney, said.

How the promise could play out

Experts are skeptical that Trump could fulfill his campaign pledge to eliminate all federal funding from sanctuary localities, citing a Supreme Court ruling that funding can only be withheld if it is relevant “to the federal interest in the project.” Cities, counties and states with sanctuary policies get federal money from dozens of different departments, most of which are not related to immigration.

Trump’s Jan. 25 executive order asked the Departments of Justice and Homeland Security to withhold “federal funds, except as mandated by law” from sanctuary cities. This  unclear wording that puzzled elected officials and municipal attorneys. Homeland Security funds could include money allocated to cities for counterterrorism.

Law enforcement grants administered to sanctuary jurisdictions by the Justice Department were already a target under the Obama administration. In May, the department investigated grant recipients based on potential violations of a federal statute that requires local agencies to share information on inmates with the federal government. Trump’s executive order also specifically mentioned this law, but as it stands, the law does not address detention requests. Torrey said local departments are in compliance if they keep the lines of communication open, whether or not they honor detention requests.

The Justice Department inspector general report found that 10 large jurisdictions that received $342 million in active justice assistance grants as of March 2015 and that received State Criminal Alien Assistance Program grants in fiscal year 2015 have policies that could put them in violation of the information-sharing law.

 

California

$132.4 M

Connecticut

69.3 M

New York City

60 M

Chicago

28.5 M

Philadelphia

16.5 M

Miami-Dade County, Fla.

10.8 M

Milwaukee

7.5 M

Clark County, Nev.

6.3 M

Cook County, Ill.

6 M

Orleans Parish, La.

4.7 M

The Justice Department inspector general report found that 10 large

jurisdictions that received $342 million in active justice assistance grants as of March 2015 and that received State Criminal Alien Assistance Program grants in fiscal year 2015 have policies that could put them in violation of the information-sharing law.

 

California

$132.4 M

Connecticut

69.3 M

New York City

60 M

Chicago

28.5 M

Philadelphia

16.5 M

Miami-Dade County, Fla.

10.8 M

Milwaukee

7.5 M

Clark County, Nev.

6.3 M

Cook County, Ill.

6 M

Orleans Parish, La.

4.7 M

These grants make up a relatively small part of the federal budget and are not a substantial source of revenue for larger cities. Federal funds made up 10 percent of New York City’s $80.5 billion budget in 2015, and $60 million in justice grants is just .75 percent of the city’s grant revenue.

In 2015, the House passed a bill to prevent sanctuary cities from receiving one federal grant directly related to immigration. The State Criminal Alien Assistance Program reimburses part of the cost of housing inmates during the second phase of deportation proceedings. The grants do not reimburse jails for holding inmates on detainer requests — that’s on their own dime, according to a report by the Immigrant Legal Resource Center.

But a Washington Post analysis found that many counties with sanctuary policies get little or no money from this program. The Department of Justice paid $165 million for the grants last year, with $18 million going to jurisdictions with policies of not cooperating with ICE.

Cutting funding isn’t the only way for the Trump administration to get places with sanctuary policies to help with deportation. Vaughan said another option is seeking an injunction in federal court to block specific policies, especially in jurisdictions that “will not cooperate in any way with ICE.” She said the worst offenders are Cook County, Ill., (home to Chicago), King County, Wash., (Seattle), and three counties around San Francisco.

These and other cities and counties have sanctuary policies that go beyond rejecting detainer requests. Some jurisdictions instruct police to not ask about immigration status; offer municipal identification cards to illegal immigrants; or offer interpreters in city offices. D.C. recently set up a legal defense fund for illegal immigrants. Deportation proceedings are held in civil court instead of criminal court, so defendants don’t have access to a public defender.

“I’m curious to see exactly what he does in terms of this defunding of sanctuary cities because it doesn’t make sense from a legal standpoint or a political standpoint,” Torrey said.

Trump’s order also asked DHS to identify localities that don’t comply with detention requests, and, once per week, to publish a “comprehensive list of criminal actions committed by aliens.”

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