"Sanctuary cities" and local citizenship.

• Author: Villazor, Rose Cuison

"San Francisco has become less like its [sanctuary city] self-image and more like many other cities in the United States: deeply conflicted over how to cope with the fallout of illegal immigration." (1)

Introduction I. Four Dimensions of Citizenship and Local Citizenship A. Defining Citizenship B. Local Citizenship II. San Francisco's Ordinance A. Historical Background B. The Bologna Lawsuit C. Recent Changes III. San Francisco's Ordinance and Local Citizenship A. Local Citizenship as Legal Status B. Citizenship as Rights C. Citizenship as Public Engagement D. Citizenship as Identity Conclusion INTRODUCTION

Citizenship's location is generally understood to reside primarily in the nation-state. (2) Accordingly, the term citizenship (3) typically evokes membership in a particular country. Yet, the concept of citizenship as one only bounded by national borders has long given way to the recognition that there are other places--both outside and within the nation-state--where citizenship is also located. (4) Indeed, as scholars have noted, sub-federal and sub-state spaces such as cities are sites where citizenship, particularly local citizenship or membership, has been articulated, constructed, or contested. (5) Critically, the construction of local citizenship within the larger space over which national citizenship dominates, presents complex legal, theoretical, political, and policy concerns. (6) Among these issues is the potential conflict between rights and privileges of local citizenship with the attendant rights and privileges of national membership. (7)

Perhaps no other area of law best illustrates the tension between local and national citizenship than immigration law, particularly when examining the scope of membership, rights, and privileges of non-citizens. At the outset, the ability of non-citizens to gain full membership to the United States is governed by the federal government through the plenary power of Congress to regulate immigration law. (8) Specifically, through the Immigration and Nationality Act ("INA") and subsequent amendments. (9) Congress established the terms and conditions upon which non-citizens may be admitted, (10) removed, (11) become eligible for legal permanent residence, (12) and apply for naturalization. (13) Collectively, these provisions within the INA help to define some of the rights and privileges of non-citizens and determine the process by which non-citizens may ultimately become full members of the national polity.

Sub-federal governments that pass laws that are inclusionary (14) or exclusionary (15) of non-citizens, particularly those who are in the United States without authorized immigration status or undocumented immigrants, fundamentally affect the congressionally prescribed rights and privileges of non-citizens. For instance, laws and policies that provide municipal identification cards to all residents, including undocumented immigrants, (16) convey the local government's intent to formally recognize and include them as local citizens. (17) By contrast, laws that deny undocumented immigrants entry into residential leases (18) signal their intent to exclude unauthorized immigrants from local borders, and therefore classify them as nonmembers in the local polity. (19) As these examples illuminate, both categories of laws--inclusionary and exclusionary--affect and shape the meaning of citizenship within the United States.

This Article explores the ways in which sanctuary laws illustrate the tensions between national and local citizenship. Specifically, this Article examines how "sanctuary cities" have arguably constructed membership for undocumented immigrants located within their jurisdictions. Recognizing sanctuary cities as sites of local citizenship for undocumented immigrants takes the first step towards analyzing what implications, if any, these places might have on national citizenship, which may be examined more fully in the future. To be clear, the Article uses the label "sanctuary city" to describe some municipalities that have adopted sanctuary, non-cooperation, or confidentiality policies for undocumented residents, which may be viewed as inclusionary types of laws. (20) Among these cities is San Francisco, whose sanctuary ordinance has received considerable media attention in the last few years. (21) As explained infra, San Francisco's sanctuary law prohibits the use of city funds and resources to aid in federal enforcement of immigration law. (22) It also expressly proscribes city government employees from asking or reporting the immigration status of individuals they encounter to federal immigration authorities unless such individuals have been detained for committing a felony. (23) In December 2009, the city's Board of Supervisors amended the law to delay the reporting of accused juvenile offenders' immigration information until after the immigrants have been proven guilty of the alleged crimes. (24) The Mayor of San Francisco, Gary Newsom, however, has announced that he would not enforce the law; accordingly, he called into question both the implementation and effectiveness of the new law. (25)

The political showdown between the Board of Supervisors and the Mayor has propelled San Francisco's sanctuary law to the center of the current national preemption debate over the extent to which state and local governments may legitimately pass laws that affect non-citizens without violating the exclusive power of Congress to regulate immigration law. (26) Indeed, the Mayor has grounded his refusal to enforce the sanctuary law in his belief that the amended version of the law violates 8 U.S.C. [section] 1373, which prohibits federal, state, and local governments from proscribing their employees from voluntarily reporting the known immigration status of individuals. (27)

The controversy between the Mayor and the Board of Supervisors, however, reveals more than a dispute about preemption. (28) As this Article argues, it also highlights how the city's sanctuary law illuminates contested views about whether to recognize some undocumented immigrants within the city's domain as members or local citizens. Mayor Newsom believes that immigrants who have committed crimes, regardless of their age, should not be able to benefit from the sanctuary policy. (29) Thus, although the Mayor has stated his support for the non-cooperation law, he contends that the immigration information of undocumented juvenile delinquents should be reported to the Immigration and Customs Enforcement ("ICE") officials. The Board of Supervisors that voted for the amendment, however, contends that juvenile offenders must be provided with due process of law and not be reported to ICE, which could subject them to removal from the United States, until proven guilty of the crimes for which they have been accused. (30) Despite their dichotomous positions regarding the treatment of juveniles, both camps recognize that the sanctuary law provides protection for some undocumented immigrants within the local sphere. (31) Importantly, both have taken the normative position that the law is necessary to encourage undocumented immigrants to feel protected, despite living in the "shadows," (32) and to participate in local matters as members of their communities. (33) Seen from this vantage point, San Francisco's ordinance acknowledges undocumented immigrants as de facto members of the local community.

The Article's examination of sanctuary cities such as San Francisco as loci of local citizenship contributes to our understanding of the tension between local and national citizenship in at least two ways. First, it highlights the competing views for creating and rejecting membership because of one's immigration status. As explained more fully below, supporters of San Francisco's non-cooperation policy believe that persons within a locality's borders ought to be able to participate in and be allowed to contribute to community affairs regardless of their immigration statuses. (34) They also contend that non-citizens should be eligible for local benefits and privileges despite their unauthorized presence in the country. By contrast, many within the city strongly oppose the grant of local citizenship status and provision of any rights or privileges to undocumented immigrants. (35)

Second, the Article underscores the challenges that local governments face in their desire to maintain the confidentiality of immigration status information of undocumented persons they encounter. Acknowledging either the intent or effect of the sanctuary policy to confer local citizenship to undocumented immigrants highlights the ways in which the local citizenship collides with the federal government's authority to determine who may belong in the United States. In particular, from the federal government's view, the grant of local functional or citizenship-like status is incompatible with the national government's conception of who shouId be a proper member of the United States. Thus, conducting a citizenship analysis of a "sanctuary city" helps to crystallize the underlying doctrinal questions that ultimately need to be addressed, including whether San Francisco's ordinance is preempted by 8 U.S.C. [section] 1373.

Part I of this Article frames the arguments presented here by highlighting basic definitional concepts regarding citizenship. Part II provides a historical and current discussion of San Francisco's ordinance. As this Part explains, a number of factors led to changes in the ordinance, including a lawsuit by a family whose family members were allegedly murdered by an undocumented immigrant. Part III examines the relationship between San Francisco's sanctuary policy and local citizenship. The conclusion raises the implications of the citizenship analysis on doctrinal preemption issues.

1. FOUR DIMENSIONS OF CITIZENSHIP AND LOCAL CITIZENSHIP

   To understand how San Francisco's ordinance may be viewed to have constructed a...