Raymond M. Berger
Real Bullet Points

Immigration Quandary: Is Sanctuary a Good Idea?

California’s sanctuary laws are really a form of delayed screening.

The United States is a case study in bad immigration policy.

In 1986 there were an estimated five million undocumented people in the US. The great majority of them have worked hard and stayed out of trouble. Nevertheless, the unregulated flow of large numbers of undocumented non-English speakers has created problems.

Immigration Woes

Among the unplanned side effects of illegal immigration have been the difficulties school districts face in educating students when many cannot speak or write English. When the numbers of immigrants became large enough, many of those who settled in immigrant-dominated areas re-created communities like those they left behind. As a result, many have not learned English or assimilated into American culture.

There are also concerns about criminals who enter the country. These include career criminals, extortionists and violent gang members. Spanish-speaking urban enclaves have often turned into high crime areas. In some cases, immigrants have brought with them the problems they had fled in the first place.

Some politicians voiced concerns about terrorists who took advantage of our porous borders and lax immigration enforcement to enter the country with intentions to harm. Law enforcement officials today are even more concerned about terrorists in our midst.  As of 2017, the Federal Bureau of Investigation had active terrorist investigations in every state.

The country’s bad immigration policy has also created problems for millions of immigrants who are in the country “without papers.” Many have lived in constant fear of deportation and separation from family members. Others have been abused by employers who failed to provide decent wages and working conditions. These employers feel safe in the knowledge that undocumented workers are pliable and will not complain to authorities for fear of being deported.

Because of their immigration status, migrants who are victimized by rapists, abusive spouses, extortionists, robbers and other criminals are often too fearful to seek help from the police. In this way, criminal activity has gone unchecked. Undocumented residents also have faced a myriad of problems related to health care, drivers’ licenses and other issues. Because they cannot vote, they are deprived of the basic rights of US citizens to choose their leaders and the policies that govern their communities.

In response to these concerns, in 1986 the US Congress passed legislation that was intended to control the alarmingly high rate of illegal immigration into the US. This was a grand bargain. Immigration advocates succeeded in improving the lives of undocumented immigrants by providing them with legal residency and a path to citizenship. Conservatives got the assurance that the borders would be better controlled, and that future immigration would be legal, controlled and supervised.

Fast forward to today. Although millions of undocumented workers were “legalized” in 1986, the borders were never tightened up. As a result, millions more people came, many from Mexico and Central America. The problem of a vast population of undocumented residents has grown far worse. We don’t know how many people fall into this category, but experts estimate that, as of 2014, there were 12.1 million such persons in the US.

Our bad US immigration system never got better.

California’s Sanctuary Laws

The election of President Donald Trump in 2016 was a watershed moment for immigration policy. After decades of lax border enforcement, the new president came into office with a promise to end illegal immigration. Despite public perceptions to the contrary, most enforcement actions carried out under the Trump administration—-for example, mass deportations—-were a continuation of his predecessor’s practices.

Trump did institute harsher incarceration practices—-for example, the detention of greater numbers of immigrants. Because minors could not be detained with adults, this led to the separation of children from their families and a subsequent uproar by the press and civil rights groups. Trump further discouraged illegal immigration with promises of a “border wall” and other measures. This led to anxiety in California’s immigrant community and loud protests by politicians from districts with large immigrant populations. This in turn, led the California State legislature to pass a sanctuary law, Senate Bill 65 ( the Values Act) which took effect on January 1, 2018.

SB 65 is a more stringent version of a 2013 California State law (the Trust Act) that prohibited local agencies from holding deportable immigrants for US Immigration and Customs Enforcement (ICE), the federal agency in charge of deportations. (Those who had committed serious crimes were excluded from protection under the 2013 and 2018 sanctuary laws.)

What are the provisions of SB 65?

Like the earlier Trust Act, SB 65 makes it illegal for a state agency—including a local police department or prison officials—to hold an illegal immigrant for ICE. If an illegal immigrant has been detained or is serving a sentence for a non-serious crime, a state agency cannot hold the detainee past the release date. State agencies may not honor ICE hold requests. They cannot even provide release dates or identifying information about illegal immigrants who have been detained—-unless that information is already publically available or the detainee has been charged or convicted of a serious crime. Police cannot ask a person about his immigration status, or detain him on suspicion of being in the country illegally. Local jails cannot even provide office space for federal immigration authorities.

Only time will tell whether SB65 will succeed in protecting both US citizens and law-abiding undocumented immigrants.

Sanctuary and the Rule of Law

Many sanctuary advocates have celebrated the passage of sanctuary laws in California. But I wonder if they have thought about the unintended consequences of these laws. The sanctuary laws nullify critical portions of federal immigration law that have been passed by the US Congress. The Congress is our national legislature, and, according to our Constitution, the legitimate voice of the American people. Today in California, it is a violation of state law to obey some federal laws. This erodes the rule of law.

The founding fathers of the US recognized that the rule of law is essential to a democratic society. According to Wikipedia, rule of law embodies “the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes.”

Laws are the glue that holds a society together. Law is like money. Money makes possible the economic transactions that are necessary for day-to-day life. But money can only work this way if the members of a society see it as legitimate. In effect, we all agree to believe that money has intrinsic value and that belief makes economic activity possible. In the same way, laws hold a society together by ensuring standards of behavior, but laws only work when all or most members of society agree that they are legitimate. With passage of California’s sanctuary laws, one group of people has said to the nation, “We don’t agree with that law, so we’ll declare it null and void.”

The danger is that inevitably, other groups of people will take this as license to nullify laws they don’t like. They may even cite California’s sanctuary laws as a precedent for nullifying laws passed by other jurisdictions.

Consider the following hypothetical scenario.

White Valley is a small California town whose residents are predominantly white. The White Valley City Council decides that people of Mexican descent are not welcome in that town because current residents want to preserve the town’s “American character.” In order to accomplish that goal, they pass a law that prohibits persons of Mexican descent from residing in the town. Council members realize that this violates California law. However, they cite California’s sanctuary laws as legal precedent for one jurisdiction nullifying the law of another jurisdiction.

This scenario seems far-fetched. Of course, excluding a group of people based on their ethnicity is morally wrong. But there are people who believe otherwise. I only offer this scenario as an example of the danger of nullifying laws that some people don’t like.

If California can nullify federal immigration law, can they nullify other federal laws? They have already done so in the form of state laws to legalize cultivation and sale of marijuana. Can California also nullify federal tax law because California legislators believe we pay more in federal taxes than we receive in benefits? Can the state nullify the recent Supreme Court decision preventing labor unions from requiring dues from all state workers?

And, if a state can nullify a federal law, can a county or city nullify a state law, as in the case of White Valley?

Can a group of citizens nullify a law passed by their town or county because they think the law should not apply to them? For example, can a rancher nullify animal protection laws because they pose an “unfair economic burden”? Can a landowner nullify a law banning clear cut logging on his land? Can a suburban resident nullify a law banning burning of his trash?

In recent months, a new concern has been added to California’s immigration policy: chaos. Since the implementation of California’s 2018 Values Act, a number of cities and two counties (as of this writing) have passed laws that negate provisions of the Values Act. Some have also initiated lawsuits against the Act. Thus, the federal government has enacted immigration law that has been negated by state law, and that state law has, in turn, been negated by a variety of local laws. Future court rulings may add to the confusion. All of this is an inevitable result of California’s violation of the rule of law.  To date, it is not at all clear how this legal morass will work out.

Sanctuary Law: Other Unanswered Questions

Even people who believe the US should open its arms to immigrants from all over the world will admit there should be some screening of people who immigrate to the US. For example, most people would agree that we should screen out people with contagious diseases or people who come to our shores solely to get treatment for expensive medical conditions. We should exclude dangerous criminals. Should we also exclude people with chemical addictions—-to glue, methamphetamines, opioid drugs or alcohol? How about people with reckless driving records?

California’s sanctuary laws are really a form of delayed screening. They take away our power to set standards for the people who enter and stay in the country. “Screening” then takes place after settlement: if the immigrant, living in this country, commits a serious crime, only then can we use our public agencies to investigate and deport him.

California’s sanctuary laws impede merit-based immigration. Is it legitimate for an immigration policy to grant priority to immigrants who bring skills that are needed in our economy? Or perhaps immigrants who can bring their wealth to the US and invest their resources here? Sanctuary laws make this difficult, if not impossible, because they create a system whereby foreigners, rather than Americans, decide who can come and stay here.

Our policy makers have never really addressed the question, “Should our immigration policy serve the interests of American citizens or of foreigners?” It is not immoral to ask this question.

In a pro-American immigration system, it is Americans (in the form of our government acting on their behalf) who would decide who comes and who stays. In a sanctuary immigration system, foreigners decide who will come and then our procedures enable them to stay.

Do we want an immigration policy that prioritizes the neediest cases, say, the most impoverished or weakest? If so, a sanctuary policy will not serve these people. Rather, it will reinforce a system whereby the most physically fit will come, as well as those with cash to support the trip and payments to smugglers. With a sanctuary policy, we take whoever arrives, rather than whoever is most deserving or neediest.

With a sanctuary policy we favor immigration of those who can get here most easily: our neighbors in Mexico and Central America. This disadvantages immigrants from other parts of the world.

Sanctuary policies encourage greater numbers of immigrants to come without authorization. Most people in the US agree that immigration is a good thing. But if our policies encourage too much immigration, too fast, this leads to the problems discussed earlier in this post. And ultimately, we may transform our country into the type of country from which today’s current immigrants are escaping.

Finally, sanctuary policies make it easier for terrorists to enter the US and remain. They do not have a criminal record because they have not yet committed their crime in the US. Thus, they will not be screened out by the list of criminal offenses that exclude illegal immigrants from sanctuary protection.

The Right Fix: Immigration Reform

Sanctuary laws enacted in California and elsewhere in the US reflect a good thing about America: our decency. This may be an instance in which Americans have placed the needs of others—impoverished, persecuted and often desperate immigrants—above their own.

But in the end, sanctuary laws are a dangerous work-around for a broken immigration system. It would be far better to fix that system and abandon our reliance on sanctuary.


Criminal Offenses That Disqualify an Undocumented Immigrant for Sanctuary Protection

In crafting sanctuary legislation, California lawmakers have taken account of the concerns of citizens and law enforcement officials. California’s citizens are aware of the highly publicized Kate Steinle case, in which an illegal immigrant shot and killed an American passer-by. The immigrant was acquitted after a jury determined that the shooting was accidental. The judge in the case did not allow jurors to take account of the shooter’s immigration status, his multiple drug convictions, or his five deportations prior to returning to this country. Law enforcement officials want to ensure that sanctuary laws do not jeopardize public safety by impeding the detection, detention, prosecution and deportation of criminals.

The legislative solution to these concerns was a lengthy list of serious offenses added to California’s sanctuary laws. An illegal immigrant charged with, or convicted of, any offense on this list is not afforded protection under California’s sanctuary laws.

This list of serious offenses is so lengthy that, at first glance, it might appear that almost any law violation would deprive an undocumented immigrant of sanctuary protection. But the very length and complexity of the list leaves me wondering how state officials could possibly enforce the list. Also, there are notable loopholes that would allow a dangerous immigrant to remain in this country. Consider the following items from the list of serious offenses that disqualify an immigrant from sanctuary protection under California’s 2013 Trust Act:

  1. Alien smuggling except for first offense in which person smuggled was parent, spouse, or child.

An illegal immigrant can smuggle several family members into the country—as long as he isn’t caught more than once—and still be assured he will not be deported.

  1. Using or creating false documents if term of imprisonment was at least one year, except for first offense committed for purpose of aiding spouse, parent, or child.

Why should anyone who enters or remains in the country illegally—-and then further violates the law by creating false documents—-be allowed to remain in the country?

  1. Burglary if term of imprisonment was at least one year; Crime of violence, as defined in 18 U.S.C. 16, if term of imprisonment was at least one year.

An illegal immigrant can commit a burglary or crime of violence and still avoid deportation as long as his sentence is less than one year. What if the immigrant commits repeated offenses, but no single offense results in a prison sentence greater than one year?

  1. Fraud or deceit offense where loss to victim exceeds $10,000; money laundering, fraud, and tax evasion if the amount exceeds $10,000.

Why is it a good idea to immunize an illegal immigrant from federal immigration law if he has stolen “only” $10,000. And what if the immigrant repeats the offense, each time remaining below the $10,000 limit?

About the Author
The author is a life-long Zionist and advocate for Israel. He believes that a strong Jewish state is invaluable, not only to Jews, but to the world-wide cause of democracy and human rights. Dr. Berger earned a PhD in Social Welfare from the University of Wisconsin-Madison and has twenty-seven years of teaching experience. He has authored and co-authored three books as well as over 45 professional journal articles and book chapters. His parents were Holocaust survivors.
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