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The Subnational Response: Local Intervention in Immigration Policy and Enforcement

Abstract

This chapter examines the history of promise and ultimately failure by the U.S. federal, state, and local governments to develop and implement compassionate immigration policies within their boundaries and the new opportunities for localized compassion presented by the current humanitarian crisis of transmigrant women and unaccompanied youth. The federal government’s inaction has, in part, led to an increase in xenophobic sentiments which caused the proliferation of varied state and local legislation targeting Latina/o immigrants. This chapter ultimately addresses how we can learn from the proliferation of state and local immigration laws to move toward developing compassionate migration policies that acknowledge the complex realities of migration while developing a form of cooperative federalism.

Keywords

  • Sanctuary cities
  • Juan Crow
  • Federalism
  • Tiered personhood
  • SB 1070
  • Xenophobic
  • State and local anti-immigration law
  • Discrimination
  • Northern Triangle
  • Executive lawmaking

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Notes

  1. 1.

    The term “crimmigration,” coined by Juliet Stumpf, characterizes the convergence of immigration and criminal law and proposes a unifying theory—membership theory—to explain the nature of such convergence and why convergence is of great concern. See Stumpf (2006).

  2. 2.

    The term “Juan Crow” can be traced to Lovato (2008): “Call it Juan Crow: the matrix of laws, social customs, economic institutions and symbolic systems enabling the physical and psychic isolation needed to control and exploit undocumented immigrants.”

  3. 3.

    It should be noted that the U.S. federal courts have struck down or prevented from going into effect all, or at least significant parts, of such measures as Arizona S.B. 1070, Alabama H.B. 56, and the Hazleton (PA) Illegal Immigration Relief Act.

  4. 4.

    For example, although almost all of the key provisions of Arizona S.B. 1070 have been declared unconstitutional, it took many years for this to occur and, more importantly, the issues of the appropriate scope, roles, and activities of subnational and supra-national entities in framing, setting, and operationalizing immigration policy remain wide open.

  5. 5.

    Although President Obama used his executive powers to provide temporary relief from deportation to what could have been as many as 5.2 million unauthorized migrants, a federal court struck down his expansion of the previously announced DACA and the new Deferred Action for Parents of Americans and Lawful Permanent Residents. However, the planned and anticipated executive actions on immigration reform will roll out over years and likely remain contested well into the 2020s. Furthermore, there is no substitute for an immigration reform that takes into account key principles of universal human rights, those from existing agreements protecting all types of migrants, and the establishment of a regional dialogue that could result in a shared vision of how to manage migration at a hemispheric level.

  6. 6.

    Texas v. United States, 809 F.3d 134, 170 (5th Cir. 2015), aff’d, U.S. v. Texas, 579 U.S. __ (June 23, 2016) (a 4–4 split affirming the lower court).

  7. 7.

    “Comparing the figures of the preliminary UNHCR 2014 report with homicide rates and violent incidents in the NTCA, there is a clear link between increased violence and the substantial increase in asylum applications and in the recognition of refugee status for NTCA nationals (130 percent increase in asylum applications from 2009 to 2013, 31 percent increase in granting of refugee status between 2010 and 2012).”

  8. 8.

    “Those advocating more restrictive positions almost always emphasize the collective effects of the millions of undocumented immigrants on the larger society. Correspondingly, these positions typically evoke mental images of a large mass of human beings. I refer to this twin emphasis on visualizing undocumented immigrants en masse and focusing on their collective impact as aggregation or clustering. In contrast, those who advocate a less restrictive approach tend to evoke the mental image of an individual undocumented immigrant or a family. Consequently, their arguments tend to emphasize the impact of a proposed policy on these individuals and families.”

  9. 9.

    See also O’Toole 2011 (“President Barack Obama says he backs immigration reform, announcing last month an initiative to ease deportation policies, but he has sent home over 1 million illegal immigrants in 2–1/2 years—on pace to deport more in one term than George W. Bush did in two”); U.S. ICE, “Department of Homeland Security Releases Year in Statistics,” (18 December, 2014), http://www.ice.gov/news/releases/dhs-releases-end-year-statistics (“In FY 2014, DHS conducted a total of 577,295 removals and returns, including 414,481 removals and 162,814 returns. ICE had a total of 315,943 removals or returns, and CBP made 486,651 apprehensions”).

  10. 10.

    “Importantly, the use of the word sanctuary conveyed a sense of moral and ethical obligation that churches and, to some extent, the local governments aimed to evoke.”

  11. 11.

    Elvira Arellano was eventually deported to Mexico in August 2007. In 2014, she presented herself at the U.S. border asking for asylum.

  12. 12.

    Press Release, “Immigrant’s Shape California Fact Sheet,” California Senate, http://sd24.senate.ca.gov/sites/sd24.senate.ca.gov/files/Immigrants%20Shape%20California%20Legislative%20Package%20Fact%20Sheet.pdf.

  13. 13.

    Press Release.

  14. 14.

    A.B. 899, 2015 Gen. Assembly, Reg. Sess. (Cal. 2015–2016).

  15. 15.

    A.B. 899 (“AB 1343 (Thurmond) Ensuring Due Process for Immigrant Defendants: Avoids unintended immigration consequences, like detention, deportation, and citizenship eligibility, by requiring defense counsel to provide accurate and affirmative advice and defense against such consequences. Both the prosecution and defense must contemplate immigration consequences in order to reach a just and fair resolution.”).

  16. 16.

    Villazor (2008) (“Once dominantly used to convey moral and ethical obligations to include immigrants to the political, legal and social terrains of the U.S., the term today operates to signal strong opposition and rejection to the presence and inclusion of unauthorized immigrants in the country.”).

  17. 17.

    Villazor (2008).

  18. 18.

    H.B. 675, 118th Gen. Assemb., Reg. Sess (Fla. 2016).

  19. 19.

    Complaint, Cruz v. Texas, 2016 WL 319204 (W.D. Tex. 2016).

  20. 20.

    H.B. 151, 476th Gen. Assemb., Reg. Sess. (La. 2016).

  21. 21.

    It should be noted that the U.S. federal courts have struck down or prevented from going into effect all, or at least significant parts, of such measures as Arizona S.B. 1070, Alabama H.B. 56, and the Hazleton (PA) Illegal Immigration Relief Act.

  22. 22.

    Complaint ¶ 22, Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007).

  23. 23.

    Lozano, 496 F. Supp. 2d 477, 555 (M.D. Pa. 2007).

  24. 24.

    Lozano v. City of Hazleton, 724 F.3d 297 (3rd Cir. 2013).

  25. 25.

    Melendres v. Arpaio, 989 F. Supp. 2d 822, 827 (D. Ariz. 2013) aff’d, 784 F. 3d 1254 (9th Cir. 2015); see also Webb (2013).

  26. 26.

    Arizona v. United States, 132 S. Ct. 2492 (2012).

  27. 27.

    Arizona.

  28. 28.

    Twenty-six states challenged DAPA even though only Texas had standing in the lawsuit. The 26 states include Texas, Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, South Carolina, South Dakota, Utah, West Virginia, North Dakota, Ohio, Oklahoma, Arizona, Arkansas, Nevada, Tennessee, Wisconsin and the governors of Maine, North Carolina, and Mississippi.

  29. 29.

    Texas v. U.S., 809 F.3d 134, 152–153 (5th Cir. 2015) (“DAPA would have a major effect on the states’ fiscs, causing millions of dollars of losses in Texas alone, and at least in Texas, the causal chain is especially direct: DAPA would enable beneficiaries to apply for driver’s licenses, and many would do so, resulting in Texas’s injury”).

  30. 30.

    Montana Immigrant Justice Alliance v. Bullock, 2016 MT 104 (2016).

  31. 31.

    The Montana Legislature sent the anti-immigrant measure to the 2012 ballot, where it was approved by 80 percent of voters.

  32. 32.

    Montana at ¶ 28 (“The Supremacy Clause of the U.S. Constitution provides that federal law ‘shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding’” citing U.S. Constitution. art. VI, cl. 2. The Supremacy Clause endows Congress with the power to preempt state law).

  33. 33.

    Complaint in Alabama v. United States, 2016 WL 92829 (N.D. Ala. 2016) (alleging under the 1980 Refugee Act the federal government breached its consultation duties and obligations of regular and advance consultation with the State of Alabama).

  34. 34.

    Texas Health & Human Servs. Comm’n v. United States, 2016 WL 1355596 (N.D. Tex. Feb. 8, 2016) (denying preliminary injunction to Texas Health and Human Services Commission seeking to prevent Syrian refugees from resettling in Texas: “The Court does not deny that the Syrian refugees pose some risk…In our country, however, it is the federal executive that is charged with assessing and mitigating that risk, not the states and not the courts. It is certainly possible that a Syrian refugee resettled in Texas could commit a terrorist act, which would be tragic. The Court, however, cannot interfere with the executive’s discharge of its foreign affairs and national security duties based on a possibility of harm, but only on a proper showing of substantial threat of irreparable injury and a legal right to relief.”).

  35. 35.

    McKanders (2007, p. 43) (criticizing the Supreme Court’s framework for analyzing preemption issues and proposing a straightforward express and implied preemption analysis of the issues).

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Correspondence to Karla McKanders .

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McKanders, K. (2017). The Subnational Response: Local Intervention in Immigration Policy and Enforcement. In: Bender, S., Arrocha, W. (eds) Compassionate Migration and Regional Policy in the Americas. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-55074-3_4

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