Factcheck.org: The Sanctuary Spat

In a Nov. 29 article we faulted former New York Mayor Rudy Giuliani for saying flatly that New York "was not a sanctuary city" for illegal aliens. We pointed out that the nonpartisan Congressional Research Service listed the city among 32 that followed "sanctuary policies" and placed it under the heading of "sanctuary cities." Giuliani campaign officials later complained to us that the CRS was mistaken and said we should have dug more deeply and reported the CRS' error. They characterized the CRS list as one intended to include only cities that do not allow local law enforcement to cooperate with federal authorities, and they said New York didn't belong on such a list.

We took up their challenge, digging into the specific policies of cities on CRS' list, including those that openly call themselves "sanctuary" cities, and comparing those policies to Giuliani's. We found the following:

The policy ordered by Giuliani as it relates to law enforcement differs only in minor respects from those of cities, including San Francisco and Cambridge, Mass., that openly called themselves "sanctuary" cities or places of "refuge." New York police could turn over the names of illegal aliens to federal immigration authorities if "suspected" of a crime, while San Francisco required that a suspected criminal also be booked on felony charges and in custody, for example.

Immigration experts we consulted said New York's policy differed but little from others that CRS put under the heading of "sanctuary" cities. "If you commit a crime … well then, in virtually all of these localities and states, you're no longer protected or insulated," said Marshall Fitz of the American Immigration Lawyers Association.

We also found that New York appears on another list – this one prepared by the National Immigration Law Center – of 70 jurisdictions that had policies "limiting local enforcement of federal immigration laws."

We'll give Giuliani this much: New York's policy doesn't come close to that of Takoma Park, Maryland. It has a 22-year-old law saying that no local official may release any information regarding the citizenship or immigration status of any individual to any third party, period. But Takoma Park may be the most extreme case and is the only one we could find with such a no-loophole policy.

It's also true that New York never called itself a "sanctuary city," contrary to a false claim made by Giuliani's rival Mitt Romney, which we pointed out in our Nov. 29 article. The term has been used by only a few cities; otherwise, it's used by opponents of such policies.

But we conclude that the Giuliani complaint about the CRS report is incorrect. Whatever New York chose to call itself, it followed policies that were similar to other cities on CRS' list, including those that called themselves "sanctuary" cities.

Rudy Giuliani and Mitt Romney have battled over whether New York City was a "sanctuary city" when Giuliani was mayor – most recently in a Nov. 28 CNN/YouTube debate. It's a war of words that has provided little to no insight into what the policies of such cities say and how New York's compares to others'. After we published our story on the debate, Giuliani campaign officials took issue with a Congressional Research Service report, which we cited, that lumped New York with 31 other cities that had "sanctuary policies."

The campaign says New York doesn't meet this definition of a "sanctuary city" in the CRS report:

CRS report: Most cities that are considered sanctuary cities have adopted a "don't ask-don't tell" policy where they don't require their employees, including law enforcement officers, to report to federal officials aliens who may be illegally present in the country. Localities, and in some cases individual police departments, in such areas that are considered "sanctuary cities," have utilized various mechanisms to ensure that unauthorized aliens who may be present in their jurisdiction illegally are not turned in to federal authorities.

Campaign officials say the report errs by including New York in a list of cities that do not allow local law enforcement to cooperate with federal authorities. And it's true that New York was turning in illegal immigrants in certain situations: As we pointed out in our story, New York's policy said law enforcement "shall continue to cooperate with federal authorities in investigating and apprehending aliens suspected of criminal activity."

It isn't true, however, that other cities on the list have a blanket prohibition on law enforcement's cooperation with federal officials. Indeed, most policies we have examined, including those of declared sanctuary cities, carve out exceptions for when law enforcement can communicate with Immigration and Customs Enforcement (ICE) or other federal agencies, just as Giuliani's executive order 124 did.

We're not taking sides as to whether these policies are good or bad, or whether the term "sanctuary city" should be used to describe the localities that have adopted them. Policies, much like New York's have been backed and approved by Democratic and Republican leaders alike and in many of the country's major cities.

Similar Statements
Romney's campaign cites the CRS report, updated in 2006, to back up the former Massachusetts governor's claims that New York called itself a "sanctuary city." (Romney is wrong on that point: We found no evidence that New York ever referred to itself that way.) In our Nov. 29 story on the Republican presidential candidates' debate, we cited and linked to the report as proof that New York was judged to fall in the category of "sanctuary cities" by a neutral source.

CRS' definition broadly described the range of policies in various jurisdictions, which have sought to limit local police enforcement of federal immigration laws and/or send a message to undocumented immigrants that they shouldn't fear using city services, such as reporting crimes or seeking emergency health care, as Giuliani has said he wanted to do in New York.

New York's executive order, first issued in 1989 and later renewed by Giuliani, called for local-federal cooperation in cases of suspected criminal activity and also allowed city employees to talk to federal agencies about an immigrant when it was "required by law." Other cities on CRS' list have similar requirements. San Francisco, for instance, which declares itself "a City and County of Refuge," permits cooperation between law enforcement and federal authorities if an immigrant is arrested on felony charges or has been previously convicted of a felony. Seattle's policy says: "Nothing in this Chapter shall be construed to prohibit any Seattle city officer or employee from cooperating with federal immigration authorities as required by law." Police may also ask about immigration status if an officer believes a felony suspect previously may have been deported.

"There are different levels of detail in the policies. There are different goals in the policies," says Marshall Fitz of the American Immigration Lawyers Association. "But for the most part, I think they are designed to provide a comfort level to immigrants that the police are, unless you're engaged in a crime, the police are not immigration agents. … If you commit a crime … well then, in virtually all of these localities and states, you're no longer protected or insulated."

The National Immigration Law Center – an immigrant rights organization – has compiled a list of more than 70 jurisdictions, including New York, that have passed laws, resolutions or police department policies limiting local enforcement of federal immigration laws. "Virtually every ordinance ... provides for cooperation with federal immigration authorities in a whole variety of circumstances," such as when it's required by law or in criminal matters, says Joan Friedland, NILC's immigration policy director. Her organization rejects the term "sanctuary city," because "that just overstates what any of these ordinances do," she says.

A Difference of Degrees
The escape clauses allowing local cops to cooperate with the feds vary. New York, under Giuliani, allowed such cooperation if an immigrant was "suspected of criminal activity." San Francisco sets the bar higher by allowing its law enforcement officers to communicate with ICE if the immigrant is "in custody after being booked for the alleged commission of a felony" or if the person actually has been convicted of a felony. So in Giuliani's New York, compared with San Francisco, police officers could contact federal immigration officials if an illegal immigrant was suspected of a greater range of infractions – misdemeanors as well as felonies. (After Giuliani left office, the New York executive order was expanded further, partly in response to federal welfare and immigration legislation passed in 1996. Now, New York officers and employees may disclose immigration status if it's necessary "to apprehend a person suspected of engaging in illegal activity," which includes actions that aren't even misdemeanors, such as jumping a turnstile in the subway.)

Seattle's ordinance, which doesn't use words like "sanctuary" or "refuge," says officers may ask about immigration status if they suspect an individual has previously been deported and has committed a "felony criminal-law violation." New York, Seattle and San Francisco all say city employees may ask for or disclose information if it's required by law. The state of Oregon, which doesn't use the word "sanctuary" either, passed a law that says police may verify a person's immigration status with federal agencies if the person has been arrested for "any criminal offense."

The Department of Justice, obviously concerned that local police forces might be hindering its immigration enforcement, issued a January 2007 report on the topic from its Office of the Inspector General. On the subject of "sanctuary cities," it identified two official "sanctuary policies" in jurisdictions that received at least $1 million in federal funds, those of Oregon and the city and county of San Francisco, and it said New York's order limited local law enforcement activities. But the report  found that all jurisdictions receiving federal funds for assisting in the removal of illegal immigrants were cooperating with federal officials. It concluded: "[I]n each instance the local policy either did not preclude cooperation with ICE or else included a statement to the effect that those agencies and officers will assist ICE or share information with ICE as required by federal law."

No Warm and Fuzzy Language in NYC
What does set some policies apart is the language and tone of the resolutions. For instance, there is a marked contrast between New York's executive order and Cambridge, Massachusetts' city council resolution, issued in 1985 and reaffirmed in 2006. Cambridge is one of the few cities that officially declares itself "A Sanctuary City."

New York executive order 124 says: "It is to the disadvantage of all City residents if some who live in the City are uneducated, inadequately protected from crime, or untreated for illness," adding that the "public welfare requires" that immigrants be encouraged to use city services to which they are entitled.

Cambridge's resolution focuses on human rights and is, in part, a product of its time. In 1985, when Cambridge passed its ordinance, churches across the country were providing refuge for Central American citizens fleeing civil wars in their countries, fearing the immigrants would not be granted refugee status by the U.S. government. The churches' actions were in defiance of federal policy and were known as the sanctuary movement. Some localities followed suit.

The spirit of the Cambridge law was evidently still alive when the city council upheld the policy, in a general sense, in 2006, declaring that the city "affirms the basic human rights and dignity and [sic] every human being" and that it "rejects the use of the word 'illegal' to describe human beings and the use of the word 'aliens' to describe immigrants." The document also calls for a moratorium on federal immigration raids until Congress passes comprehensive immigration reform.

Still, even though the tenor and declarations are decidedly different from New York's mayoral policy, Cambridge didn't issue a blanket prohibition on cooperation with federal authorities – not in 1985 or in 2006. The original 1985 resolution declared that "no city employee or department, to the extent legally possible, will request information about or otherwise assist in the investigation of the citizenship status of any City resident, will disseminate information regarding the citizenship of a City resident, or condition the provision of city of Cambridge services or benefits on matters related to citizenship." The 2006 reaffirmation of that policy doesn't include that point, nor anything about law enforcement.

FactCheck.org called the Cambridge Police Dept. to find out what all this might mean in practical terms. A spokesman said the department contacts ICE if it's holding suspected unauthorized immigrants for criminal violations but has no formal policy.

That informal procedure is just like the official policy of New York City under Mayor Giuliani.

The American Immigration Lawyers Association's Fitz said he knew of no jurisdiction that didn't allow police to work with federal immigration authorities at all. We found one (and it's possible there are others): Takoma Park, Md., which, like Cambridge, passed its "Immigration Sanctuary Law" in 1985, and reaffirmed and amended it in 2007. Takoma Park's law says that "no agent, officer or employee of the City … shall release any information regarding the citizenship or immigration status of any individual to any third party." City Manager Barbara Burns Matthews says it is likely that "ours is one of the most restrictive" in that it does not carve out any exceptions.

The Giuliani campaign would be correct to say that New York's policy during his tenure was quite different from that of Takoma Park – a liberal suburb of Washington, D.C., that also declared itself a nuclear-free zone and called for the impeachment of George Bush and Dick Cheney. But his policy – whatever you'd like to call it – is similar to others that have limited communication with federal officials about undocumented immigrants.

Join the Discussion