Tension between the federal government and so called “sanctuary” cities, counties, and states has been rising, with President Trump threatening to withhold millions of dollars in federal funding for law enforcement programs to those states. No place is this tension more apparent than in California. In March, Attorney General Sessions put pressure on the state when he filed a lawsuit charging that California has violated the Constitution with laws that adversely impact the work of federal immigration officers—a charge that California Governor Brown and AG Becerra refute. At the same time, U. S. Immigration and Customs Enforcement agency (ICE) enforcement is on the rise, with the number of arrests in 2017 reportedly up by 40 percent from the year before. Here, Lisa Weissman-Ward, clinical supervising attorney and lecturer in law with the Immigrants’ Rights Clinic at Stanford Law School, explains the legal challenges facing sanctuary states and cities—and undocumented residents living here.
First, can you give us a sense of the number of people affected by this? About how many undocumented immigrants live in the Bay Area?
We don’t have exact data on the number of undocumented individuals. Of the estimated 11 million undocumented individuals in the United States, approximately 7 million are living in mixed-status families, with authorized immigrants and undocumented members. So, it’s hard to estimate. The latest data from a 2010-2014 report tell us that there is a high percentage of mixed status families in the Bay Area. Here are some examples: 30% of residents in Alameda County are immigrant and/or undocumented, 23% in Contra Costa county, 20% Sacramento county, 34% San Francisco city and county, and 37% in Santa Clara county.
There have been some well-publicized enforcement actions and raids by ICE agents in California recently. Has there been an increase since the Trump administration?
Nationwide we’ve seen a 40% increase in ICE enforcement and arrests from 2016 to 2017 and a 150% increase in arrests of undocumented immigrants without any criminal record or charges.
But we are not seeing an increase in the number of raids—the big roundups done at one’s place of work, for example. There is a real fear and panic that comes from the word raid, and so we are mindful in the terminology we use. What we are seeing is more targeted enforcement actions, which means an increase in activity where ICE is going out and looking for a specific individual by name and address. That number is definitely going up. In September, there were 500 arrests nationally as part of what ICE called “operation safe city,” which was a coordinated national ICE action. Of those 500, 33% happened in California. We just had another series of arrests that made the headlines, in particular because the Oakland Mayor alerted the county’s residents to the threat of a forthcoming immigration action. We’ve heard about 150 people were arrested in the Bay Area.
While there has been an increase in immigration enforcement actions, we are also seeing incredible local and regional advocacy and organizing to educate our communities about their legal rights and to provide critical legal and non-legal resources in the event that community members are arrested. For example, there are over a dozen local networks that provide 24/7 hotline coverage for community members to call when there is an enforcement action. These hotlines range in the scope of services they provide, but many include the dispatch of verification teams, legal observers and family accompaniment teams. Others, like the networks in Santa Clara County, San Mateo County, San Francisco City/County, and Alameda County include guaranteed access to emergency legal responders—immigration lawyers who are trained to respond to an emergent situation that involves the arrest of a community member. There is also a regional network (the Northern California Rapid Response and Immigrant Defense Network) that is working to provide coverage from Bakersfield to the Oregon/California Border (which is the jurisdiction of the San Francisco Immigration Court). The regional network is working in partnership with the various local networks to identify and fill gaps in need and coverage.
What happens to people when they are the subject of an ICE arrest? And are they offered—or entitled to—legal services?
These often occur in the dark, very early in the morning before the sunrise. So people may be sleeping when they hear a loud bang at the door. ICE agents are often dressed in “SWAT team” gear, including batons and weapons. Their jackets may even say “police,” which can be misleading. If the residents don’t have evidence that they are living in the U.S. with permission from the government and if they admit such facts, they are often removed on the spot in handcuffs and brought to an ICE processing center. There are often collateral arrests too. If ICE agents are looking for one person, they may ask for everyone’s documents in the home or office, even those not on their ICE list. So, people can get swept up.
Do ICE agents need a judicial warrant to enter a home?
Yes. An administrative ICE “warrant” is not sufficient to gain entry into a home in the absence of consent. As such, part of the education and outreach to impacted community members has been focused on advising individuals to not answer the door unless ICE has a judicial warrant—meaning a warrant signed by a judge. An Immigrants’ Rights Clinic (IRC) project that students worked on a number of years ago with the Immigrant Legal Resource Center (a national nonprofit with headquarters here in the Bay Area) involved creating a “red card” that explains individual rights and asks about a judicial warrant. IRC students came up with the idea of the red card after brainstorming with each other and consulting with impacted community members about how to make sure the information was accessible and also how community members would feel asserting their rights—so how they could be comfortable actually using the cards. The red card came from the idea of a referee on a soccer field raising a red card (to expel a player from the game). Community members can slide the card under the door to avoid engaging in any face-to-face contact. The card has been hugely successful, with millions distributed throughout California. Armed with a red card, the targeted resident does not have to open the door to ICE – but can slide the red card under the door instead.
Are students in the Immigrants’ Rights Clinic working on issues relating to increased immigration enforcement?
Yes. In a number of ways. The IRC and its students have served as the “on call” emergency attorney responders for San Mateo and Santa Clara counties. These “on call” shifts last one week at a time and are 24/7. The IRC is also participating in the Santa Clara and San Francisco sanctuary city litigation. The IRC and its students have written two amicus briefs in support of the counties. The briefs have been filed with the Northern District of California and the Ninth Circuit. The IRC is also focused on issues relating to access to counsel in a variety of settings to ensure that if an individual is arrested and detained, they have the ability to locate and communicate with counsel.
I have been on the steering committee for the Northern California Rapid Response and Immigrant Defense Network since the network got started in 2017. I participated in strategizing and fundraising efforts to get the network off the ground and have worked to serve as a liaison between the regional network and the Santa Clara and San Mateo networks. During the summer, I also served as the on-call emergency response attorney for both local networks.
Can you remind us what it means to be a “sanctuary” state like California or city like Oakland or San Francisco?
The term sanctuary has no uniform legal meaning, but in general it refers to integrationist policies—that is, policies that serve to integrate immigrants regardless of their status. So called “sanctuary” laws might include prohibition of use of county funds to initiate an inquiry or enforcement based solely on immigration status, or the refusal to hold ICE detainees (in county jails, for instance, until ICE arrives), or the refusal to let ICE agents into public spaces without a judicial warrant. So, it can take many forms. But it is not a protective blanket that prevents ICE from doing its work. They can do their job, but it’s a matter of how much assistance they get from localities.
What about the administration’s threat to withhold federal funding from states?
What we saw with the executive orders the week after President Trump’s inauguration included direct or indirect threats to penalize cities, counties, and states that do not work closely with ICE. In Jan. 2017 an executive order threatened to strip “sanctuary” jurisdictions of funds. This is now being litigated. There was also a call to reinstate what is called the “secure communities” program, a program that President Obama ended because of litigation and concern around a number of issues, including racial profiling. The border security executive order explicitly states that the administration wants to expand local law enforcement cooperation with and participation in ICE enforcement. This includes programs to deputize local police to act as ICE agents. But here in CA we’ve seen legislative action to counter these proposals. Just this week we saw another attack against California for its commitment to its immigrant communities. This came in the form of the lawsuit filed by Trump against the State of California. This case is as much political as it is legal.
Lisa Weissman-Ward is a Lecturer in Law and supervising attorney with the Stanford Law School Immigrants’ Rights Clinic. Lisa supervises clinical law students in their representation of clients facing removal from the United States.