Calling New York a ‘sanctuary city’ may not mean much

The label ‘sanctuary city’ can be deceptive.

How good is New York City’s sanctuary?

In his first week in office President Donald Trump issued executive orders directing Immigrations and Customs Enforcement to drastically expand the list of undocumented immigrants prioritized for deportation.

That list was already long, but now includes those who have been charged with any crime, regardless of the severity of the accusation or whether they’ve been convicted. In response, Mayor Bill de Blasio pointed to NYC’s standing commitment to limit cooperation with ICE. He said that wouldn’t change despite Trump’s threats to pull some or all federal funding for the city.

But since then, activists and immigrant advocates have begun singling out holes in NYC’s commitment to sanctuary,claiming the city’s focus on quality-of-life crime puts immigrants here illegally in danger.

In part, that danger is hypothetical, but there are real limits to the “sanctuary” umbrella.

When de Blasio and others tout “sanctuary” principles, they are mostly talking about the limited amount that city agencies like NYPD and the Department of Correction cooperate with ICE, as governed by a long history of laws and executive orders.

In limited circumstances, the city directly transfers prisoners into ICE custody. But that cooperation only happens when the individuals are on a terror watchlist or have been convicted of one of approximately 170 felonies in the last five years (or released from a sentence for one in the same time period).

Those felonies are fairly serious, the idea being that the city isn’t safeguarding someone who has been convicted of violent crimes. But that list could change. De Blasio himself indicated he would be open to adjusting it when questioned at state budget hearings Monday by a Assemb. Nicole Malliotakis. (The assemblywoman mentioned crimes such as sexual misconduct, forcible touching, welfare fraud, and identity theft).

There are two ways that the list of 170 crimes could grow. Changes to the state’s penal code could be folded into the city’s list, after administrative review. More significant changes require a collaboration between the mayor and City Council. At the moment the council’s liberal political bent make this a fairly safe bulwark against adding dumb things like turnstile hopping to the list of things the NYPD would help ICE deport you for.

The problem is that dumb issues like turnstile jumping and other minor offenses can still bring you to ICE’s attention even without NYC’s cooperation.

The chain of events goes like this: an undocumented immigrant is arrested for a misdemeanor, such as hopping over the turnstile or driving under the influence. The person is arrested, and due to state Criminal Procedure Law 160.10 their fingerprints are taken, along with personal information. That information is sent to the state and then shared through national databases such as the FBI’s National Crime Information Center.

The Department of Homeland Security and ICE “regularly check those,” says Genia Blaser, a staff attorney at the Immigrant Defense Project.

There are multiple concerns here. First, the turnstile jumper’s fingerprints could be matched with DHS’s own database, says Blaser, which includes anyone who has at any point had contact with DHS — including someone who entered on a tourist visa and overstayed its length, for example.

Under Trump’s expanded priorities, the low-level offender will be on ICE’s radar without the help of the NYPD.

The other concern: maybe DHS somehow doesn’t have an individual’s fingerprints. But after he or she gets stopped on the wrong side of the turnstile and arrested, his or her fingerprints along with his or her country of birth is sent to the national database. ICE now has another priority target.

The Immigrant Defense Project and other advocates aren’t saying that ICE will immediately be going after every single one of the thousands of people these new priorities will include. It’s unclear how Trump’s executive orders will be implemented. One calls for 10,000 new agents, who would have to be paid for by Congress.

But the potential is there, and the precedent. ICE conducted widespread raids without police cooperation such as Operation Return to Sender under the George W. Bush administration. Those types of raids were less common under Obama, yet the former president deported more people than any president in history.

The city isn’t offering shelter on this front, apart from saying that it has taken some measures to decrease arrests for certain low-level offenses. But those arrests occur: Councilman Rory Lancman wrote to de Blasio this week pointing to the 30,000 criminal charges for fare evasion in 2015. Lancman asked that the NYPD start using civil violations for those cases rather than criminal, to prevent the chain of events leading to ICE.

But this cuts at the heart of broken windows policing, which developed in the city’s subways, and de Blasio has said he’s not interested in changing the arrests policy — an example of the hole in NYC’s sanctuary policy that could be a problem in the coming years.

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