Citation, Not Deportation: Broadening Sanctuary Policy Through Abolitionist Alternatives

CITATION, NOT DEPORTATION: BROADENING

SANCTUARY POLICY THROUGH ABOLITIONIST

ALTERNATIVES

AUSTIN ROSE*

TABLE OF CONTENTS

INTRODUCTION ......................................... 906

I. SANCTUARY AND ANTI-SANCTUARY: A BACK-AND-FORTH BATTLE . . . 907

A. A History of Sanctuary: From Ad Hoc Resistance to

Citywide Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 907

B. The Spectrum of Modern Sanctuary Policy. . . . . . . . . . . . 909

C. Anti-sanctuary Strikes Back. . . . . . . . . . . . . . . . . . . . . . 911

II. A TALE OF TWO CITIES: SANCTUARY POLICY AND ITS FAILURES IN THE

DISTRICT OF COLUMBIA AND AUSTIN, TEXAS. . . . . . . . . . . . . . . . . 912

A. District of Columbia............................ 912

B. Austin, Texas ................................. 913

III. CITATION IN LIEU OF ARREST: BROADLY IMPLEMENTED YET

INFREQUENTLY UTILIZED .............................. 914

A. The Limited Expansion of Citation in Lieu of Arrest. . . . . . 915

B. Advantages of Citation in Lieu of Arrest . . . . . . . . . . . . . . 917

IV. FRAMING CITATION IN LIEU OF ARREST AS SANCTUARY POLICY . . . . . 918

A. How Citation in Lieu of Arrest Serves Sanctuary Purposes . . . 919

B. Citation in Lieu of Arrest v. Conventional Sanctuary Policy . . . 921

* Austin Rose is a third year J.D. candidate at Georgetown University Law Center and holds a bache-

lor’s degree in Government from Georgetown University. He has worked on sanctuary policy advocacy

in the D.C. region for the past several years.

905

V. MAKING SANCTUARY POLICY ABOLITIONIST ................. 923

VI. CONCLUSION ...................................... 927

INTRODUCTION

Criminal arrest is essential to the American deportation machine. Every

day in communities across the United States, non-citizens are arrested by

local police for typically minor criminal offenses, taken to local jails, and

promptly handed over to Immigration and Customs Enforcement (ICE) for

detention and eventual deportation from the United States, often before being

convicted of the offense for which they were initially arrested.

1

To protect

immigrant residents from detention and deportation, states and localities are

increasingly enacting “sanctuary” policies that limit collaboration between

local law enforcement and ICE. Yet, these sanctuary policies fail to meaning-

fully inhibit the continued functioning of detention and deportation systems.

Even the most ambitious sanctuary policies are undermined by carveouts,

inconsistent compliance, interjurisdictional battles, and state and federal

coercion.

While the Biden administration is expected to push forward some modest

reforms to the American immigration system, it is unlikely that ICE under

Biden will signif‌icantly depart from its long-standing practice of deputizing

local law enforcement to enforce federal immigration law. The number of

ICE “detainers” lodged against non-citizens in local criminal custody was

higher on average under the Obama administration than under President

Trump.

2

Sanctuary policies will therefore remain necessary for jurisdictions

seeking to shield their residents from federal immigration enforcement. At

the same time, the Biden administration’s more focused enforcement prior-

ities

3

and its lack of open hostility toward sanctuary jurisdictions

4

may pres-

ent an opportunity to broaden the scope of local sanctuary policy in new,

creative ways.

This Note proposes a broader sanctuary policy that focuses less on limiting

police-ICE collaboration and more on reducing the scope of police and

1. See Miriam Jordan, After a Pandemic Pause, ICE Resumes Deportation Arrests, N.Y. TIMES (Sep.

12, 2020), https://www.nytimes.com/2020/09/12/us/ice-immigration-sweeps-deportation.html.

2. TRACIMMIGRATION, Latest Data: Immigration and Customs Enforcement Detainers, https://trac.

syr.edu/phptools/immigration/detain/ (last visited April 23, 2021) (comparing average annual number of

ICE detainers issued between 2009 and 2016 to average annual number issued between 2017 and 2020).

3. Memorandum from Acting ICE Dir. Tae Johnson to All ICE Employees, Interim Guidance: Civil

Immigration Enforcement and Removal Priorities 3–5 (Feb. 18, 2021), https://www.ice.gov/doclib/news/

releases/2021/021821_civil-immigration-enforcement_interim-guidance.pdf.

4. See Camille Squires, What does Joe Biden mean for sanctuary cities?, CITY MONITOR (Jan. 19, 2021),

https://citymonitor.ai/joe-biden/what-does-joe-biden-mean-for-sanctuary-cities (predicting that sanctuary

cities will have more leeway under Biden administration); DORIS MEISSNER & MICHELE MITTELSTADT,

MIGRATION POL’Y INST., AT THE STARTING GATE: THE INCOMING BIDEN ADMINISTRATION’S IMMIGRATION

PLANS 6 (2020), https://www.migrationpolicy.org/sites/default/f‌iles/publications/mpi-biden-starting-gate-

brief_f‌inal.pdf (distinguishing Biden’s immigration plans from Trump’s aggressive interior enforcement and

attacks on sanctuary cities).

906 GEORGETOWN IMMIGRATION LAW JOURNAL [Vol. 35:905