The unfortunate death of thirty-two year old Kathryn Steinle in San Francisco allegedly at the hands of a man lacking permission to be in the United States has reignited old refrains about migrant illegality and border insecurity. Coming on the heels of Republican presidential nominee Donald Trump’s infamous claims that many Mexican migrants are rapists or drug dealers, this sad affair has thrown political commentators and politicians into a tizzy about migrant criminality.
As could be expected, Republicans have jumped on this event, the facts of which remain very unclear, to repeat their claims that migrants make the United States dangerous. Trump called this “another example of why we must secure our border.” Republican U.S. Senator Ron Johnson from Wisconsin who chairs the Senate homeland security committee, said “it doesn’t make any sense” that the alleged perpetrator, Juan Francisco Lopez Sanchez (also known as José Inéz García-Zarate), hadn’t been deported even though ICE had issued an immigration detainer for him.
Some top Democrats have shared similar sentiments. Democratic presidential contender Hillary Clinton told a reporter that San Francisco “made a mistake not to deport someone that the federal government strongly felt should be deported. … I have absolutely no support for a city that ignores the strong evidence that should be acted on. This man had already been deported five times, and he should have been deported at the request of the federal government.” Longtime Democratic U.S. Senator Diane Feinstein added, “I strongly believe that an undocumented individual, convicted of multiple felonies and with a detainer request from ICE, should not have been released.”
Rather than get entangled in dead-end political posturing, I prefer to turn to the host of issues about how criminal policing processes intersect with immigration law that this situation raises.
To be sure, much of what actually happened remains unclear. The many news reports I’ve read at times present conflicting pieces of information. I’m hopeful that those facts will get sorted out as the criminal process runs its course. For now, I’m relying on the most commonly reported events I’ve read in the news articles linked to below and many others.
Before anything else, let’s be clear about one thing: by and large, migrants make communities safer not more dangerous. Reams of evidence supports this basic premise. As Jessica Simes and Mary Waters put it in the encyclopedic Oxford Handbook of Ethnicity, Crime, and Immigration whose nearly 1,000 pages I recommend to anyone seriously interested in the topic, “the association between crime and immigration exists solely in the political discourse; when researchers evaluate the available data, immigrants demonstrate the exact opposite trend” (page 457). A timely report by Walter Ewing, Daniel Martínez, and Rubén Rumbaut released yesterday, for example, notes that the migrant population in the United States increased from 1990 to 2013 while violent crime declined 48% and property crime fell 41%.
Of particular relevance to the San Francisco death, Latino migrants tend not to increase crime either. Jacob Stowell and Ramiro Martínez have described lower homicide levels within Latino immigrant groups than non-Latinos in Miami, even when considering Cuban, Nicaraguan, and Honduran migrant communities separately. Along with Jeffrey Cancino, Stowell and Martínez found that border communities in Arizona, California, New Mexico, and Texas (all of which have large Latino migrant populations) “have significantly lower levels of lethal violence than non-border counties” in those states when taking into account poverty and other structural factors. When those factors aren’t considered, violent crime rates are statistically similar. The same is true of states outside the Southwest (e.g., Alabama, Arkansas, Kentucky, Maryland, Mississippi, North Carolina, South Dakota, and Tennessee) in which Latino migrant populations grew substantially in a short number of years. Earlier this week David Fitzpatrick summarized a host of similar data in a highly readable article on Salon.
None of this, of course, means that no migrant will ever commit a crime. Such a claim would be patently absurd. In any population of roughly 23 million people, someone is bound to commit a crime, including of the most gruesome variety. This makes death at the hands of a migrant less likely than at the hands of a native-born individual, but it doesn’t make it unheard of. As such, let’s turn to other crimmigration law issues that this situation raises.
Low-level drug prosecutions
News reports indicate that Sanchez recently finished serving a four-year federal prison term for entering the United States without authorization. Having successfully prosecuted him for lacking permission to be in the United States, the federal government clearly knew Sanchez was deportable and quite literally had him in its hands. At this point federal prosecutors, the Justice Department’s Bureau of Prisons (the agency that operates federal prisons), and ICE were well aware that Sanchez had been deported five times before and had returned to the United States without authorization. That alone is enough to have him removed from the United States very quickly. Indeed, Sanchez wouldn’t even be entitled to see an immigration judge under these circumstances. He could be removed through a process called “reinstatement of removal”—basically meaning that a prior removal order issued by an immigration judge is activated.
Instead of removing him from the United States upon completion of his sentence, however, the Bureau of Prisons chose to release him into the hands of the San Francisco County Sherriff’s Department in March. As the Los Angeles Times explained it, he was turned over to the sheriff for potential prosecution for a twenty-year-old marijuana charge.
The only reason he wasn’t removed when the federal government had him in its possession was because of a desire to prosecute people for low-level drug offenses that are decades old. This despite the fact that marijuana possession and sale might soon be legalized in California (as it is in Colorado where I live).
Why did the Justice Department’s BOP hand Sanchez to San Francisco authorities for possible prosecution for a two-decades old crime that is so routine in my neighborhood that I no longer notice it, that occurs nightly in college dorms nationwide, and that, I’m guessing, wouldn’t faze all that many residents of or visitors to San Francisco? Even if Sanchez committed the charged drug crime twenty years ago, it doesn’t take a criminal law specialist to know that there are probably no witnesses available to testify to that effect and there’s a good chance the evidence (if any ever existed) has long been lost by police officials. Perhaps this helps explain why San Francisco prosecutors declined to move forward on the old criminal case.
Even if witnesses and evidence remain available, though, what benefit did prison officials think the country would obtain from having Sanchez prosecuted for doing something that entrepreneurs and customers in Denver, where I live, do openly on an enormous scale two blocks from my house and all over the city? Why not instead hand Sanchez over to ICE to deport him yet again (for a sixth time it would appear)? ICE, after all, had already issued a request to BOP officials to notify them that he was about to get released, according to a report by Dara Lind. The only explanation I can gather is that this is an example of two federal government agencies failing to work together.
After this, why didn’t ICE try to apprehend Sanchez during the months between when he was released from the San Francisco jail and Ms. Steinle was killed last week? Lind points to one plausible explanation: efficiency. As she put it, “After all, someone like Francisco Sanchez is basically Exhibit A for what ICE calls a ‘deportation priority.’ He has a criminal record; he’s a ‘repeat immigration violator’; he was apprehended just after crossing the border in 2011, so he hasn’t been settled in the US. But the fact of the matter is that ICE is more interested, most of the time, in picking up immigrants from local jails than in tracking them down.”
Perhaps we’ll learn more about this as details emerge.
Having sent Sanchez to the San Francisco authorities, ICE wanted him back once they learned that San Francisco declined to prosecute the decades-old case (though not so much that they actually tracked him down). Though I don’t have details about the immigration detainer form actually used against Sanchez, ICE’s current detainer policy asks local law enforcement agencies to hold onto a named individual for up to 48 hours (including weekends and holidays) to give it time to decide whether they want to take the person into its custody. Applied to Sanchez, this would mean that Sanchez would’ve remained in the San Francisco jail for up to two days while ICE decided whether they wanted to pick him up. Given his four prior felonies for drug possession and manufacturing crimes, Sanchez fits ICE’s top priorities for detention and removal so there’s a good chance they would’ve have taken him into custody had county officials abided by the detainer (under the Secure Communities program that the Obama Administration ended recently, his civil and criminal immigration law violations would also have made him a priority). But they didn’t.
In this regard, San Francisco isn’t alone. Many jurisdictions limit the extent to which they comply with detainers because detainers pose significant Fourth Amendment concerns. Though ICE has altered its detainer practice in the last year after multiple courts concluded that detainers violated the Fourth Amendment, a significant constitutional problem remains.
As I wrote on Tuesday, a detainer falls short of meeting the Fourth Amendment’s usual requirement of interposing a neutral judge between law enforcement officials and private individuals. Wary of the king’s ability to send his sheriffs to arrest anyone on a whim, through the Fourth Amendment the Founders obligated police to ask a judge to approve an arrest before it occurs (though plenty of exceptions have been carved out of this ostensibly stringent requirement). Current detainer practices don’t involve a neutral judge thus they don’t satisfy this requirement. Complying with a detainer request that violates the Fourth Amendment exposes local law enforcement agencies to financial liability, a prospect that few local governments are interested in bearing.
A simple fix exists. ICE could simply gather its evidence and go before a judge to request an arrest warrant. Would it really be that hard for ICE officers to show that someone like Sanchez has committed a crime that renders him removable from the United States? Not at all. In fact, those records should be in their files; if not, they just needed to track down one of those conviction documents from the courthouse.
But keeping with their usual practice, ICE officials didn’t do this in Mr. Sanchez’s case. That they refuse to do so despite roughly 225 years of experience with the Fourth Amendment suggests that they have little respect for this core constitutional provision. Perhaps one day ICE will begin to do as police officers throughout the United States do routinely every day: ask a judge to approve an arrest instead of issuing legally dubious detainer requests.
Rather than focus on the constitutional problems with ICE’s detainer request, numerous commentators have honed in on the fact that San Francisco prides itself as being an immigrant-friendly city. According to the Washington Post, “The city has been designated a ‘sanctuary city’ since 1989.” As a result, sanctuary city policies have come under fire in recent days, with a good amount of misinformation about what this phrase even means. As I write in Crimmigration Law, my soon-to-be-released book,
Most commonly, sanctuary policies prohibit discrimination on the basis of citizenship status, enforcement of immigration laws generally, enforcement of civil immigration laws only, governmental inquiries about citizenship status, notification of federal immigration officials, or a combination of these. Through an internal policy decision known as Special Order 40, the Los Angeles Police Department, for example, has bound itself since 1979 from “initiat[ing] police action with the objective of discovering the alien status of a person.” Much more recently, the city of Durango, Colorado adopted a resolution prohibiting use of city funds “to identify, apprehend or deport any non-citizen residents on the sole basis of immigration status.” The City and County of San Francisco, meanwhile, prohibits using “funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals,” though it goes on to exempt information regarding people who have been arrested or convicted of certain crimes.
Among the many crimes that exempt a person from San Francisco’s sanctuary policy are felony convictions. As such, San Francisco’s sanctuary policy didn’t stop sheriff’s department officials from cooperating with ICE. Claims that the San Francisco sanctuary policy had anything to do with Ms. Steinle’s premature death, it seems, are simply wrong.
While we learn more about how Ms. Steinle died and how Mr. Sanchez ended up on the streets of San Francisco, it’s worth keeping in mind that there was nothing in his past (that we know of at least) to indicate a violent future. No San Francisco official or ICE officer could’ve looked at Sanchez’s record of low-level drug crimes and repeated immigration violations and concluded that he was likely to kill someone. If anything, his criminal history paints a picture of a man trying to earn a living in the United States afflicted by an all-too-common drug addiction.
 Huyen Pham, The Constitutional Right Not to Cooperate? Local Sovereignty and the Federal Immigration Power, 74 U. Cin. L. Rev. 1373, 1389 (2006).
 Los Angeles Police Department, Office of the Chief of Police, Special Order 40 (Nov. 27, 1979), available at http://lapdonline.org/get_informed/pdf_view/44798.
 Durango, Colo, City Council Resolution No. 2004-40 (July 6, 2004), available at http://www.durangogov.org/DocumentCenter/View/782.
 S.F., Cal., Admin. Code § 12H.2-2.1.
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