[i] (July 9, 2015)

handle is hein.crs/crsmthaafim0001 and id is 1 raw text is: 

Legal Sidebar


Recent Shooting in San Francisco Raises Questions

about Sanctuary Cities and Compliance with

Immigration Detainers




Rt       rt that an alien who shot and killed a woman after being released by San Francisco authorities had been the
subject of an immigratio detainer have raised questions about state and local practices of declining to honor such
detainers. In this case, the detainer reportedly requested that local officials notify U.S. Immigration and Customs
Enforcement (ICE) prior to releasing the alien so that ICE could take him into custody for removal proceedings.
However, ICE's past practice of using detainers to request that states and localities hold aliens for up to 48 hours after
they would otherwise have been released for the state or local offense so ICE could investigate their removability
(rather than immediately initiate removal proceedings) had  o       uisd  a-including San Francisco-to
adopt policies of declining to honor immigration detainers in certain cases.

These anti-detainer policies vary among jurisdictions, as illustrated by the three policies most relevant to the San
Francisco case, but are generally concerned with detainers to detain, and not detainers which request that ICE be
notified before an alien's release. Neither the federal detainer e nor the standard detainer form are generally
seen to require states and localities to hold aliens for ICE or to notify ICE before releasing an alien (although tQher
provisions of federal law bar states and localities from restricting the sharing of information about immigration or
citizenship status). A federal court of appeals has hld that construing federal regulations to require that states and
localities hold aliens that would otherwise have been released for ICE would run afoul of the Tenth Amendment's anti-
commandeering principles. Requirements to notify ICE upon release of an alien (rather than actually holding the alien)
could, however, potentially be viewed differently by courts.

California TRUST Act

Under California's TRUST Act, which was enacted on October 5, 2013, and took effect on January 1, 2014, state and
local law enforcement officials may detain an alien who is eligible for release from custody pursuant to an
immigration hold-which is defined as a detainer that requests state and local officials to maintain custody of the
alien and notify ICE prior to the alien's release-only if two conditions are met. First, the hold must not violate any
federal, state, or local law, or any local policy, a condition which allows any more restrictive local policies to prevail
over the terms of the TRUST Act. Second, the alien must have been convicted of certain offenses listed in the Act,
which include serious or violent felonies, assault, battery, and use of threats, as those offenses are defined under
specific provisions of the California Penal Code. If both these conditions are met, the TRUST Act would permit-but
not require-state and local officials to hold aliens pursuant to immigration detainers (although two recent federal
dis~s discussed in an earlier Leaal Sidebar suggest that such holds may run afoul of the Fourth
Amendment even if they are requested by the federal government and authorized under state law). The Act does not
address whether state and local officials may honor detainers that do not seek the continued detention of aliens and do
not fall within the Act's definition of immigration holds.

San Francisco Ordinance No. 204-13

San Francisco's Ordinance N. 204-13 was similarly amended on September 24, 2013, to restrict the circumstances in
which local law enforcement officials may honor immigration detainers. As amended, the ordinance generally bars law
enforcement officials from detaining an individual pursuant to an immigration detainer after the individual becomes
eligible for release from custody. However, an exception currently provided for in the Act would apparently permit (but

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