Expanding the geographies of ‘sanctuary’ and the deepening and contentious nature of immigration federalism: the case of California’s SB 54

ABSTRACT

This article examines the concept and practice of sanctuary jurisdictions in the United States, including its secularization through its codification in state and local laws. It traces the political and legal battles that involve the contentious dynamics in the development and expansion of such jurisdictions. The article will highlight and examine California's Senate Bill 54 (SB-54), also known as the California Values Act. SB-54 was the first state bill to establish a statewide sanctuary jurisdiction expanding the ‘geographies of sanctuary' beyond cities and counties. It was a bill enacted in response to the most anti-immigrant policies in contemporary U.S. history under the Trump administration. I will argue that the expansion of ‘geographies of sanctuary' through state laws fosters more inclusive immigration federalism, directly challenging the enforcement of today’s immigration laws considered by many as unfair and inhumane.

KEYWORDS:

• Sanctuary
• geographies of sanctuary
• sanctuary jurisdiction
• immigration federalism

Disclosure statement

No potential conflict of interest was reported by the author(s)

Notes

1 When using in this text ‘immigration federalism’, we are referring to the role that states and local governments play in making and implementing immigration law and policy. Although the Supreme Court in 1876 declared in the Chy Lung v. Freeman, 92 U.S. 275 (1875) case that the regulation of immigration is a federal responsibility, there has been a historic process in which the federal State has included states and local government in the implementations and enforcement of immigration laws and policies through the transfer or devolution of powers. The devolution of powers to local governments and states has been mainly to support the enforcement of immigration laws that have been increasingly restrictive and more punitive. However, in the past decade, there has been a process of inclusive immigration federalism under the 10th Amendment that has seen state legislatures establish laws to protect certain immigrants from what are considered unjust immigration laws and policies. For further references, see Decker et al. (2012), Gulasekaram and Ramakrishnan (2015), and Reich (2018).

2 When we refer in this article to the ‘criminalization of irregular migration’ or the ‘criminalization of migration or immigration’ we are referring to the use of criminal law when dealing with violations of immigration laws. We are also considering the expansion of new classes of ‘felonies’ that the state uses to detain and deport irregular migrants, lawfully present immigrants, including permanent residents. The ‘criminalization of migration’ also includes the expansion of the immigration enforcement mechanisms that include more punitive measures, including more extended detention periods, and the development of new grounds for deportation. From a policy and discursive perspective, it has increased the number of those considered ‘criminal aliens.’ The former stigmatizes immigrants as prone to commit more crimes than citizens. For further references, see Ewing et al. (2015), McNamara (2020), and Atak and Simeon (2018).

3 When we refer in this article to ‘securitized migration’, the ‘securitization of migration’, or the ‘securitization of immigration’, we are referring to states, mainly receiving states, that define immigration as a security issue. In the case of the United States, the securitization of migration was formalized by the creation in 2002 of the Department of Homeland Security, which combines all the principal agencies that control the borders, administer the immigration laws and policies, and enforce immigration laws under one department. The leading agencies are U.S. Customs & Border Protection, U.S. Citizenship & Immigration Services, and U.S. Immigration & Customs Enforcement. What this means in policy terms is that migrants, regardless of the immigration status, are considered as potential security threats and hence require a higher level of screening. The implications of securitizing migration are (1) the physical closure and militarization of borders, (2) highly restrictive immigration-control policies, including stricter visa systems, (3) the amalgamation of asylum seekers and migrants weakening the legal status of asylum seekers and, (4) the perception of migrants as threats. For further references, see Adamson (2006), D’Appollonia (2016), Ceyhan and Tsoukala (2012), Jaskulowski (2019), Farny (2016), Pope (2020), Boateng and McCann (2020).

4 Secure Communities is a Department of homeland Security program that was launched in March 2008. The way this program works is when an individual is booked into jail and has his or her fingerprints taken, the FBI then sends the fingerprints to ICE. ICE checks the fingerprints against the U.S. Visitor and Immigrant Status Indicator Technology Program (US-VISIT) and the Automated Biometric Identification System (IDENT). This process allows state and local law enforcement and ICE to automatically and immediately determine an individual’s criminal and immigration history. If the individual has a record indicating a potential immigration violation, ICE will issue a detainer against the jailed individual while it decides if the individual should be transferred to federal custody rather than released. For further references see ICE (2018) and American Immigration Council (AIC) (2011).

5 Parts of this section appear in Arrocha (2018).

6 Section 1324(a)(3) provides:

Any person … who … willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, in any place, including any building or any means of transportation … any alien … not duly admitted by an immigration officer … shall be guilty of a felony. (quote of Section 1324 taken from Olson, 1983, p. 170)

7 A ‘Trust Act’ in the contest of noncompliance with federal immigration allows state and local law enforcement agencies to ignore a federal ‘detainer’ for an unauthorized immigrant who has not committed a serious felony or been identified for other reasons, such as being in a database of gang members or suspected terrorists. It is of particular importance as the Secure Communities Program require state and local police to detain any immigrant who is unlawfully present in the country. See: Rojas (2011).

8 Program 287 (g) or the Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act (INA) was a Section of the INA that was added under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The program establishes agreements between ICE, state and local law enforcement agencies, that permit designated officers to perform limited immigration law enforcement functions. See: ICE (n.d.-b).

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William Arrocha

Dr. William Arrocha is an Associate Professor at the Middlebury Institute of International Studies at Monterey, California. He holds an MA and PhD in International Politics from Queen’s University at Kingston, Ontario, and a bachelor’s degree in International Politics form the Universidad Nacional Autónoma de México (UNAM). His latest coedited publication by Palgrave Macmillan is titled Compassionate migration and regional policy in the Americas. His research which emphasizes interdisciplinary approaches focuses on the intersection of immigration, development, nationalism, human rights and security. He can be reached at [email protected] and his professional web page is https://www.middlebury.edu/institute/people/william-arrocha