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Sanctuary cities 'harboring' aliens: Trump's next immigration target? By Nolan Rappaport

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Some sanctuary cities provide municipal ID cards to undocumented aliens to make it easier for them to remain in the United States unlawfully.

For instance, the San Francisco Board of Supervisors passed an ordinanceon Nov. 20, 2007, authorizing the County Clerk’s Office to issue SF City ID Cards. This photo identification card streamlined access to government programs for undocumented alien residents and connected them to local businesses, e.g., by providing a form of identification that could be used to open a checking account at participating banks.
New York City also has a municipal ID card. It connects New Yorkers to services, programs, and benefits, regardless of immigration status.





Five days after President Trump’s election, Chicago Mayor Rahm Emanuel reiterated Chicago’s commitment to being a sanctuary city. He said, “Chicago has been a city of immigrants since it was founded.” He also announced that a Municipal ID program was being developed and provided a link to Chicago’s Office of New Americans which is intended “to make Chicago the most immigrant-friendly city in the world.”

On March 29, 2017, he introduced an ordinance to the ity Council to establish the promised municipal ID card because many vital services require proof of identity, and some populations have difficulty accessing official identification, such as undocumented immigrants. The ID card will provide them with access to city services, cultural institutions, programs, and other benefits. “This program represents our values and reaffirms that everyone is welcome in this city.”

In President Trump’s Executive Order 13768, Enhancing Public Safety in the Interior of the United States, he declares that “Sanctuary jurisdictions” that “willfully violate Federal law in an attempt to shield aliens from removal from the United States” have caused “immeasurable harm to the American people and to the very fabric of our Republic.” He intends to withhold federal funds from these jurisdictions, “except as mandated by law.”

This could cause serious financial problems for Chicago. In FY2016, Chicago received the second highest amount of federal funding in the country, $5.3 billion. Information is not available yet on how much of this funding would be subject to withholding.

Read more at http://thehill.com/blogs/pundits-blo...ary-cities-and

Published originally on The Hill.

About the author.
Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security, and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. He also has been a policy advisor for the DHS Office of Information Sharing and Collaboration under a contract with TKC Communications, and he has been in private practice as an immigration lawyer at Steptoe & Johnson.






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Comments

  1. ImmigrationLawBlogs's Avatar
    This is one of the most potentially dangerous suggestions that anyone who cares about preserving democracy in America could possibly imagine. The statute Mr. Rappaport mentions, INA Section 274, makes it a federal felony, not only to "harbor" an immigrant who is in the country illegally, but to "assist" or "aid and abet" such a person.

    This is extremely broad language which could be interpreted to prohibit any conduct or action that could benefit an immigrant who lacks legal status

    This could include not only providing legal or medical services, not to mention shelter, education or any other imaginable benefit to someone who is here illegally, but it could also prohibit any kind of contact at all between an American citizen and and immigrant.

    Even small benefits, such as tipping a car driver or restaurant server without checking the person's citizenship or immigration status first, could be considered as rendering assistance in violation of this statute.

    Advocacy on behalf of unauthorized immigrants, failure to report them - any act of omission which might enable or encourageunauthorized persons to stay in the US even one extra day - one extra hour - might conceivably be considered a violation of the express language of this statute.

    In fact, the statute, used to the full extent of its language, could completely cut off immigration debate lest anyone who opposes Trump's mass deportation agenda or recommends/introduces any kind of legalization proposal could be considered as assisting or inducing people to remain in the US illegally.

    Trumo himself might be open to prosecution under a literal reading of this statute, since he has not (yet) rescinded Former President Obama's DACA program, which is openly intended to enable millions of people who are deportable according to the law stay in America longer, at least temporarily.

    To the best of my knowledge, prosecutions under this statute have been limited up to now mainly to fact situations which are connected to smuggling.

    Any expansion of prosecutions under this section beyond the smuggling context would be a recipe for fascism in America.

    It would make the Nazi Nuremberg laws forbidding certain types of contact between Germans and Jews seem mild and limited by comparison.

    There has been a good deal of talk about expanding the prison system to hold the millions on non-criminal immigrants whom Trump is now targeting for ethnic cleansing and mass expulsion.

    But one cannot even begin to think of how many jails and prison camps America would need to incarcerate the tens of millions, perhaps up to a hundred million, of its own citizens who could, at least in theory, be subject to prosecution under this law.

    In his inauguration speech, Trump set forth the motto:

    "Buy American and hire American."

    Expanding the use of Section 274 would add the motto:

    "Prosecute American and lock up American."

    One can only hope that a distinguished immigration law scholar such as Mr. Rappaport will consider the full implications of INA Section 274 before suggesting that it be used for any purpose.

    Any wider use of this statute beyond its current narrow context (or even within its present context), could quickly lead to extinguishing democracy in America and could turn this country into a land of totalitarian fear and terror, just as the Nuremberg Laws did in Germany.

    Roger Algase
    Attorney at Law
    Updated 04-03-2017 at 09:25 PM by ImmigrationLawBlogs
  2. ImmigrationLawBlogs's Avatar
    It's a big leap from prosecuting a few politicians to turning America into a fascist country.

    Roger, what is so terrible about AG Session conditioning funding from DOJ on jurisdictions agreeing not to violate section 1373 of the INA?That provision doesn't require them to do anything!
    It just says that jurisdictions can't prohibit their agencies from sharing immigration information with ICE.

    Nolan Rappaport
  3. ImmigrationLawBlogs's Avatar
    I do not see any coherence in Nolan's reply to my comment. INA 1373 is a civil, not a criminal statute, and it cannot be the basis for prosecuting anyone, let alone the elected state or local officials whom Nolan would like to send to prison under an entirely different statute for "harboring", or "assisting" people to remain in the US without legal permission - just as Trump himself is now arguably doing by continuing to accept applications under DACA.

    Does Nolan suggest that the president should be prosecuted for doing the same thing that the mayors of Chicago and other American cities are allegedly doing - assisting or aiding and abetting immigrants to remain in the US illegally?

    I would respectfully suggest leaving any decision about whether to recommend criminal charges against the president up to the FBI, which is now looking into an entirely unrelated matter - namely Trump's ties with Russia.

    As to cutting off federal funds to Sanctuary Cities under the civil statute, INA 1373, a number of legal experts have argued that this would raise 10th Amendment problems, citing a Supreme Court decision by the late Justice Scalia himself in favor of the rights of the states to oppose federal policies.

    I am not a 10th Amendment expert and will not discuss that issue further here.

    It is enough to point out that the issue of cutting off federal funds to Sanctuary Cities is a different one from the issue of launching criminal prosecutions against their elected officials for resisting Trump's policies of ethnic cleansing and mass expulsion against Hispanic, black Asian and Middle Eastern immigrants.

    Nolan appears to be confusing these two separate, even though admittedly related, issues.

    Roger Algase
    Attorney at Law


    Updated 04-04-2017 at 12:12 PM by ImmigrationLawBlogs
  4. ImmigrationLawBlogs's Avatar
    I would also add that, aside from the legalities involved, cutting off federal funds to Sanctuary Cities could raise some serious policy questions. Doing so would make these jurisdictions less, not more, safe, because the cities would lose federal money for crime prevention programs in general - including preventing or dealing with crimes by US citizens who, I would repesctfully remind Nolan, have a higher crime rate than unauthorized immigrants according to reputable studies.

    Therefore using INA 1373 as a pretext to cut off federal funds would indicate that Trump's main priority is making America whiter rather than safer.

    The same dangerously skewed priorities appear in Trump's Muslim immigration ban, which was reportedly opposed by most of his national security officials on the grounds that it would damage America's ties with its allies in the Muslim world and give ISIS a powerful recruiting tool.

    According to media reports too numerous to mention, Trump showed little or no interest in consulting with his national security experts prior to issuing the Muslim ban executive orders, but relied exclusively on certified Islamophobes such as Stephen Bannon and Stephen Miller for advice.

    Here again, Trump's policy priorities are in the direction of putting an agenda of racial and religious hate ahead of the safety and security of the American people.

    Roger Algase
    Attorney at Law


    Updated 04-04-2017 at 07:45 AM by ImmigrationLawBlogs
  5. ImmigrationLawBlogs's Avatar
    Roger's right, iNA 1373 is civil. My mistake, I was responding to his objections to Trump's position on sanctuary cities.

    Nolan Rappaport
  6. ImmigrationLawBlogs's Avatar
    Roger says, "I would respectfully suggest leaving any decision about whether to prosecute the president up to the FBI, which is now looking into an entirely unrelated matter - namely Trump's ties with Russia."

    Comey's comments on Hillary's email's notwithstanding, the FBI doesn't decide whether criminals will be
    prosecuted. He said she would not be prosecuted because Obama's Attorney General had compromised herself with the secret meeting she had with Bill Clinton not long before Comey's announcement.

    Nolan Rappaport
  7. ImmigrationLawBlogs's Avatar
    Quote Originally Posted by ImmigrationLawBlogs
    This is one of the most potentially dangerous suggestions that anyone who cares about preserving democracy in America could possibly imagine. The statute Mr. Rappaport mentions, INA Section 274, makes it a federal felony, not only to "harbor" an immigrant who is in the country illegally, but to "assist" or "aid and abet" such a person.

    This is extremely broad language which could be interpreted to prohibit any conduct or action that could benefit an immigrant who lacks legal status

    This could include not only providing legal or medical services, not to mention shelter, education or any other imaginable benefit to someone who is here illegally, but it could also prohibit any kind of contact at all between an American citizen and and immigrant.

    Even small benefits, such as tipping a car driver or restaurant server without checking the person's citizenship or immigration status first, could be considered as rendering assistance in violation of this statute.

    Advocacy on behalf of unauthorized immigrants, failure to report them - any act of omission which might enable or encourageunauthorized persons to stay in the US even one extra day - one extra hour - might conceivably be considered a violation of the express language of this statute.

    Roger Algase
    Attorney at Law

    The provision only applies to people who harbor unlawful immigrants, "
    knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law,"

    Nolan Rappaport


  8. ImmigrationLawBlogs's Avatar
    Nolan is quite right, of course. Section 274 would "only" apply to anyone who has reason to suspect that a given person who looks or talks like a foreign citizen might be here illegally.

    Since everyone pesent in the US is presumed by law to be a non-US citizen who is here illegally unless he or she produces papers to the contrary, Section 274, read literally, would only apply about 250 million Americans and 50 million immigrants in this country who run across somone who might be "illegal" (i.e. non-white) and who fail to check that person's papers or report the individual to ICE.

    Thank you, Nolan, for reminding us of the "limited" scope of INA Section 274.

    Roger Algase
    Attorney at Law
    Updated 04-09-2017 at 05:02 AM by ImmigrationLawBlogs
  9. ImmigrationLawBlogs's Avatar
    Roger says, "Since everyone pesent in the US is presumed by law to be a non-US citizen who is here illegally unless he or she produces papers to the contrary,...."

    I didn't know that. Trump probably doesn't either. Do you want to tell him, or should I do it?

    Nolan Rappaport
  10. ImmigrationLawBlogs's Avatar
    Can Nolan point out the provision of law which says that non-citizens of the US are presumed by law to be here legally unless they are shown to have violated the law, even when no one has seen their legal documents?

    I have never heard of such a provision and I would be glad to know which section of the INA Nolan is referring to.

    And I am also having a problem finding the part of the law saying that anyone claiming to be an American is presumed to be a citizen even without showing documentary proof.

    Even in the state voting rights cases, voters initially have to show proof of citizenship in order to register, though not necessarily (depending on the state) every time they go to the polls.

    Roger Algase
    Attorney at Law
    Updated 05-03-2017 at 07:27 PM by ImmigrationLawBlogs
  11. ImmigrationLawBlogs's Avatar
    Roger, I was being sarcastic. No one has to prove legal presence unless there is some reason to think otherwise. I don't know the standard. My guess is it would be something less than probable cause.

    But you are viewing the issue in isolation. ICE and CBP don't see someone standing in line at an ATM and ask for proof that he has lawful status, or walk up and down the sidewalk stopping foreign-looking people to ask them for ID. Law enforcement doesn't work that way. You won't ever see a couple of cops squatting down behind a desk at bank watching for a bank robbery to occur because they have a few hours to kill.

    But your problem isn't that they question people they think might be illegal. You don't want the immigration laws to be enforced, whether it is done properly or not.

    Nolan Rappaport




    They question someone when they think it is warranted, for whatever reason.
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