The Senate’s failure to advance legislation to punish “sanctuary” cities has put a spotlight on how local jurisdictions choose to interact with immigration-related requests from the federal government.

Despite the Obama administration’s efforts to improve the cooperation between cities and counties, and federal immigration authorities, obstacles to bolstering those ties remain.

The legislation that Democrats united to block on Wednesday was written to address one of the largest motivators for local jurisdictions that choose to have sanctuary immigration policies.

The bill, sponsored by Sen. Pat Toomey, R-Pa., and intended to strip congressional funding from sanctuary cities, also specified that local jurisdictions cannot be sued for complying with requests from the federal Immigration and Customs Enforcement (ICE) agency.

Many local law enforcement officials have expressed concern that they would be legally liable if they accidently held a U.S. citizen without a warrant at the request of federal immigration authorities.

Based on documents she obtained from the Department of Homeland Security, Jessica Vaughan of the Center for Immigration Studies estimates that as of October 2014, at least 50 jurisdictions limited their cooperation with federal immigration requests due to concerns over legal liability.

“I think that the main effect of Sen. Toomey’s bill would [have been] positive more than punitive, because it would [have addressed] directly one of the reasons that many of the counties have become sanctuaries in recent years,” Vaughan told The Daily Signal. “Dozens of counties that now feel that they have to refuse ICE detainers could begin complying again without exposing themselves to litigation.”

But there are other reasons that cities and counties limit their engagement with ICE.

“I don’t think one-size-fits-all will explain the phenomena of cooperation or noncooperation,” said Muzaffar Chishti, an immigration policy and law expert at the Migration Policy Institute, in an interview with The Daily Signal.

Immigration experts site Cook County, Illinois, as a jurisdiction that has a unique policy.

Cook County, which is the second most populous county in the United States, has a large immigrant community, and, in an effort to build trust, has a blanket policy against helping ICE carry out its immigration functions.  

“While we appreciate the role of ICE in ensuring the public’s safety and welfare, we also believe strongly that everyone is afforded basic civil and human rights, and that no one is subject to unnecessary detention,” said Frank Shuftan, the director of communications for the president of the Board of Commissioners of Cook County.

In a statement to The Daily Signal, Shuftan continued:

We continue to believe that the best way to ensure public safety is through building confidence and trust between police and the communities they serve. The progress we have made with immigrant communities would be seriously compromised by entangling Cook County with ICE and a policy of detention [that is] allowed.

The Obama administration has sought to improve the relationship between local jurisdictions and ICE, and Department of Homeland Security Secretary Jeh Johnson personally traveled to Cook County earlier this year to lobby it to change its policy.

Policy Change

In November 2014, President Barack Obama, as part of his executive actions on immigration, issued a directive to end a controversial program called Secure Communities.

That program required local law enforcement to hold arrested illegal immigrants for deportation, even without probable cause.

Critics of the program, created in 2008 under President George W. Bush and expanded by Obama, said it punished immigrants arrested for less serious crimes such as minor traffic violations.

With the Priority Enforcement Program, which replaced Secure Communities, local authorities are supposed to notify ICE only when they plan to release someone on whom federal officials have requested information.

ICE, however, can still issue a detainer if it believes it has probable cause to deport an illegal immigrant who has been arrested, even if the person hasn’t been convicted.

Local jurisdictions that do not comply with the detainers or notices of release are not violating the law when they do so.

Due to a 2014 federal appeals court ruling, complying with detainer requests is optional and local jurisdictions are legally free to enact their own policies.

But the Obama administration hoped that the Priority Enforcement Program would promote more flexibility with how cities and counties devise their policies, and encourage skeptical jurisdictions to get on board.

Mixed Results

According to ICE, some agencies that previously did not cooperate with immigration requests are making efforts to comply. ICE reports that of the 25 jurisdictions with the highest number of declined detainers, 17 of those are now participating in the Priority Enforcement Program to some degree.

“DHS continues to make significant strides in building partnerships with local law enforcement and community leaders through PEP to ensure a commonsense approach that focuses enforcement resources on convicted criminals and individuals who threaten public safety and national security while also taking into account important community policing needs,” Sarah Rodriguez, a ICE spokesperson, told The Daily Signal.

Rodriguez declined to comment on Toomey’s legislation.

The Fresno County Sheriff’s Office in California—which was one of the 20 jurisdictions with the most declined detainers in 2014—is one agency that has changed its policy after the enforcement program’s implementation.

Fresno Sheriff-Coroner Margaret Mims told The Daily Signal that she instituted a pilot project that she says is being copied by other California jurisdictions.

“We allow ICE personnel to come into the jail so there is no need to make notifications or make a decision on detainers because ICE agents are already there making real-time decisions about who they take into custody based on PEP,” Mims said.

Still, Mims is limited in how she can cooperate with ICE due to a California law passed by the state legislature in 2014 that prohibits local law enforcement from complying with federal requests to hold low-level offenders.

Last July, 32-year-old Kate Steinle was murdered in San Francisco by an illegal immigrant who had been deported several times.

Despite the pressure for local cities and counties to increase communication with ICE, some holdouts remain, including Cook County, which has not changed its policy since PEP began.

“Cook County is doing business as usual—we are not changing our ordinance, and only after exhausting all options would we consider disclosing the additional information required under PEP,” Shuftan said.

In addition, Philadelphia, the largest city in Toomey’s state, enacted a policy earlier this year of not cooperating with ICE requests except in limited circumstances

Even if the Obama administration and Congress continue to work to boost cooperation between cities and counties and ICE, some local jurisdictions will resist changes to their current policies, experts predict.

“My sense is that jurisdictions that are inclined to cooperate with the federal government through PEP will find this [congressional efforts to enforce cooperation] as more reason to do it,” Chishti said. “And jurisdictions which are not inclined to cooperate won’t find this as a reason to. There are other forces at work here. Costs are not the only thing driving a lack of cooperation.”