ICE should use subpoenas as a key to unlock sanctuary jurisdictions

Cities, counties and states across the nation continue to push to expand sanctuary policies. These policies have proven to endanger public safety and undermine national security. State and local officials who promote sanctuary policies contend that any cooperation with federal immigration authorities is “voluntary,” and that under the Tenth Amendment they can just opt out. 

But the Supremacy Clause of the U.S. Constitution makes federal law, including immigration law, supreme over state law. So what if there were a federal legal mechanism to make them cooperate, and not merely request it? Actually, there is: administrative immigration subpoenas.  They’ve been used sparingly in the past but it’s time to start using them everywhere.

The chief purpose of administrative immigration subpoenas, like any subpoena, is to compel the production of information, usually in the form of documents but also possibly in-person testimony. This objective collides headlong with the chief purpose of most sanctuary policies, which is to conceal information from Immigration and Customs Enforcement (ICE) and other federal immigration agencies and officials.

Federal law enacted by Congress — the Immigration and Nationality Act (INA) — authorizes these subpoenas. As currently codified as 8 U.S.C. Section 1225(d)(4)(A), the relevant portion of that federal statute provides:

“The Attorney General and any immigration officer shall have power to require by subpoena the attendance and testimony of witnesses before immigration officers and the production of books, papers, and documents relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of [ICE], and to that end may invoke the aid of any court of the United States.”

The next subsection goes on to explain that that judicial “aid” means failing to comply with such a subpoena can be sanctioned as contempt of court.

Apparently out of a sense of professional courtesy, in the past ICE has sent subpoenas only to private parties such as individuals and businesses and hasn’t used this tool on state and local governments.

However, there is nothing in the law that says it can’t. Recognizing that, ICE in January issued subpoenas to a few sanctuary jurisdictions, ordering them to produce information on illegal aliens in their custody or face the prospect of being held in contempt of court. The recipients ranged from small rural counties in Oregon to entire states such as Connecticut, to America’s largest sanctuary city: New York City.

Noting that the subpoenas are expressly enforceable by contempt, Acting ICE Director Matt Albence put it bluntly — sanctuary officials inclined to defy them “can show up to court with a toothbrush because they might not be going home that night.”

Some localities complied almost immediately. In February, the San Diego County Sheriff’s Office turned over information on four illegal aliens it was either holding or had held for crimes ranging from sexual assault on a child to robbery to driving under the influence. Sheriff Bill Gore (R) noted that California’s 2017 sanctuary law, SB 54, “contains no explicit language prohibiting or authorizing compliance with federal subpoenas. A federal subpoena creates a mandatory legal obligation and is not cooperation.” 

For the jurisdictions that didn’t comply, ICE turned to the courts to seek enforcement of their subpoenas. Those opposed to complying, such as Denver, responded to the lawsuits brought by ICE, contending that the federal statute violates the Tenth Amendment if used on state or local agencies. So far, that argument has not resonated with the courts.

In Denver, Federal Magistrate Judge Michael Hegarty ruled in favor of ICE in April, requiring the sanctuary jurisdiction’s sheriff’s office to turn over records on three individuals it had been holding. Less than two weeks later, Denver announced it wouldn’t appeal that ruling but would simply comply.

Former Acting ICE Director Tom Homan, now a senior fellow at the Immigration Reform Law Institute (IRLI), notes that, previously, “law enforcement agencies always provided that information because they knew it was in furtherance of the laws of this country that were made to protect our nation and communities.” However, he said that while the legal authority to compel compliance with subpoenas has been around for decades, the proliferation of sanctuary policies now makes using it necessary.

He’s right. The tools are there, the need to use them is there, and not to use them would be irresponsible. By any reasonable definition of the term, there are more than 500 sanctuary jurisdictions across the country now, representing an exponential increase over the past decade. By some estimates, half of all Americans live in a sanctuary jurisdiction. Every sanctuary policy that keeps information and other assistance away from ICE potentially makes American citizens and immigrants alike less safe. 

ICE has tested the effectiveness of its administrative subpoenas on a small scale and been successful. It should use these subpoenas as a key to unlock every sanctuary in the country.

David Jaroslav is state and local legislative manager for the Federation for American Immigration Reform (FAIR).