Dean Alexander Moot Courtroom

Thursday, November 9, 2017, 5:30pm

Introduction: Dean Alicia Ouellette, President and Dean of Albany Law School

Moderator: Professor Andy Ayers, Director of the Government Law Center and Visiting Assistant Professor, Albany Law School

Panelists: (1)

Hon. Kathy M. Sheehan, Mayor City of Albany

Philip L. Torrey, Managing Attorney, Harvard Immigration and Refugee Clinical Program

Dina Francesca Haynes, Professor of Law, New England Law

Jeremy McLean, Staff Attorney, Worker Justice Center of New York


    Dean Alicia Ouellette: Welcome everyone. I am Alicia Ouellette, the President and Dean of Albany Law School and I am thrilled to welcome you to tonight's symposium on sanctuary cities.

    The word sanctuary comes from the Latin roots, sacer and sanctus, both meaning holy. Sacer led to sacred and sacrifice, which initially referred to a holy offering. Of course, the meaning of the word has changed, but the roots remain. In churches, Anglo-Saxon England, churches and church yards provided forty days of sanctuary, immunity from prosecution, as well as care and comfort for refugees and fugitives.

    For slaves in the underground railroad, churches often provided sanctuary space for organizing meetings. In the 1980's, U.S. churches provided sanctuary to political refugees from Central America. And for the most part, the U.S. government chose not to interfere.

    Sanctuaries provide safe harbor, allowing refugees time to escape prosecution, giving them time to negotiate alternatives. Today we talk about sanctuary cities, cities that limit cooperation with the national government in its effort to enforce immigration laws. There are hundreds of sanctuary cities in this country. By some counts, 300 to 700. There are also sanctuary counties and sanctuary states.

    Why do cities seek sanctuary status? Leaders and citizens of sanctuary cities want to support their residents and neighbors, regardless of immigration status. They want to reduce the fear of deportation, and the possible break up of families. They want their children to enroll in the schools, to use health and social services to report crimes.

    Opponents of sanctuary cities argue that cities should assist the federal government in enforcing its laws. Of course, the decision to become a sanctuary city raises important legal and policy questions. It even raises moral questions. What kind of city do we want to be? What kind of country do we want to be?

    Today on our panel, we have leaders and experts who will help to answer these questions. I want to congratulate the Albany Law Review, for putting together a great program. I want to especially congratulate Olivia Pedersen, who has done all the work to put this program together.

    And I will now turn the program over to Olivia Pedersen.

    Olivia Pedersen: Good evening. Thank you to Dean Ouellette for that fantastic opening. Both Albany Law School and Albany Law Review take the responsibility to foster conversations about important legal topics very seriously. In that spirit, I want to welcome you to the Albany Law Review Fall Symposium on Sanctuary Cities. I would also like to thank our faculty advisor, Professor Bonventre, and our Editor-in-Chief, Emma Tiner. Without further ado, because I think that this is a topic that deserves as much time to talk about as possible, I would like to introduce our moderator, Professor Andy Ayers.

    Professor Ayers graduated from Georgetown Law at the top of his class. After graduating, he worked for the New York Attorney General's office for nine years. He then clerked for Judge Lynch at the U.S. District Court for the Southern District of New York and if that is not impressive enough, he also clerked for Justice Sotomayor on the Second Circuit, prior to her appointment and confirmation as a Supreme Court Justice. Currently, Professor Ayers is working on a law review article discussing immigration and state sovereignty at the moment. So, Professor Ayers.

    Professor Andy Ayers: Thank you so much. I'm really honored that the students at the Albany Law Review asked me to moderate tonight. Olivia, thank you so much for that introduction.

    So, my name is Andy Ayers. I'm the Director of the Government Law Center and I teach here at the law school. My goal for tonight is to have a conversation that will help people understand more about what a sanctuary city is. It's an issue that has inflamed the public debate. I doubt very much if there's any lawyer in the world who would claim to fully understand it because of how complicated everything gets when you start talking about immigration law, much less immigration law and how it overlaps with criminal law, local law, constitutional law, labor law and all of the other kinds of law that intersect around the issue of sanctuary cities.

    Before I introduce the panelists, I thought I'd take just a couple minutes to give my best attempt at explaining what kinds of things we are talking about when we are discussing sanctuary cities to frame the conversation.

    So, here are six kinds of sanctuary. The idea is when a government entity declares itself a sanctuary city, a sanctuary town, or a sanctuary state, it can mean many different things. Different government entities below the federal level, do different things that affect non-citizens.

    As the Director of the Government Law Center, which studies state and local government, it's exciting to me to talk about this issue because I think that when so many people hear immigration law, they think of the federal government. Rightly so. If you're deported, that's who deports you. But there's a lot more in the lives of non-citizens affected by the government, where it really is state government and local government that makes the decision that affects peoples' lives. So, part of my hidden agenda for tonight is to convince you that state and local government is extremely important, even on issues that generally get discussed in the federal context.

    That said, the general idea of a sanctuary is to not help the federal government with enforcement of immigration law. In our area, Albany, Hudson, Syracuse, Rochester, and Ithaca have declared themselves sanctuaries. Those are all cities. So is the town of Bethlehem, and the county of Tompkins, which is where Ithaca is located. And the state of New York, is not a sanctuary state, in the sense that some others are, but we do have sanctuary policies and I'll talk about what that means.

    Here are six kinds of sanctuary. The first relates to detention. Before the federal government removes people, they're often in detention. A sanctuary, in the strictest sense, the sense that the Justice Department of the United States has recently announced as the definition for sanctuary as a jurisdiction that when asked to detain a non-citizen, says "no." And I say asked and not ordered because the context in which this comes up is a document called "The Detainer." A detainer is a funny form that comes from the federal government, it's addressed to a state entity and asks politely, "I see you have someone in custody, would you be so kind as to detain them, longer than you otherwise would have or in a context where you otherwise might not have, so that we can consider whether to take an immigration enforcement action against them?"

    It's a funny document in several senses. One of them is that only fifteen percent of detainers actually lead to Immigration and Customs Enforcement ("ICE") appearing to take custody of that person. Therefore, it is not a guarantee that they are after you.

    So, in New York State, jurisdictions like New York City, which have announced themselves as sanctuaries, will not honor a detainer, meaning they will say, "no." But all of these kinds of sanctuaries are on a spectrum. There's hardly ever a simple yes or no. So, in New York City, the general answer is no, but New York City will respond to a detainer, honor a detainer, if the person has been convicted of, "a violent or serious crime and if there's a judicial warrant pending for their arrest."

    So yes, there are sanctuary jurisdictions unless you are a certain kind of convicted criminal.

    I hope you understand that to call oneself a sanctuary jurisdiction is a complicated advertisement that may oversimplify the benefits that are available to people who come to rely on that declaration. Another issue I want to point out that complicates the detention side is that local jurisdictions have control over whether you end up in ICE custody in more than just one way. Detainers are not the only way we affect that if we are a city.

    For example, district attorneys decide what charges to bring against a non-citizen who's been accused of a crime. Some kinds of convictions will make you removable, i.e., deportable, and some will not. There are some district attorneys, whether or not they are in sanctuary jurisdictions who will take that into account when considering, "Well if I bring a certain kind of charge, that might end up with the person being deported. Whereas if I decide to charge it another way, it might not." Conversely, jurisdictions, such as New York City, has been criticized by advocates for calling itself a sanctuary jurisdiction, even though it prosecutes certain kind of low-level offenses that put people into the pipeline that will someday lead to their removal.

    Another question is whether you provide information to the federal authority. Do you as a government employee come into possession of information about someone's immigration status? And if you do, do you share it? Two questions there, are you collecting information? Do you ask? Well almost every government entity sometimes has occasion to ask what someone's immigration status is. In the state context, welfare benefits can depend on your immigration status. Eligibility for professional licensure can depend on your immigration status. You may just become aware of it--a school counselor may...

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