Trump’s executive orders on immigration could threaten local dollars

President Donald Trump holds up an executive order for border security and immigration enforcement changes after signing the order during a visit to the Homeland Security Department headquarters in Washington, D.C., Wednesday, Jan. 25, 2017.

The financial barbs of President Donald Trump’s executive order on immigration enforcement could land their hooks in dollars headed toward local governments or agencies.

The executive order threatens to take action against sanctuary cities, and thus far Lawrence or Douglas County has not been labeled a sanctuary community on any of the numerous lists that are kept. But that could change.

A review by the Journal-World found that Douglas County and Sedgwick County have very similar practices in how they deal with illegal immigrants in jail. Those practices have caused Sedgwick County to be labeled a sanctuary community, and leaders in Wichita are contemplating losing some federal funding. Under a proposed state law, Douglas County would clearly meet the definition of a sanctuary community.

The executive order makes the designation one to watch. The order came with the threat of withholding federal grant money from jurisdictions that have policies or practices that “prevent or hinder” the enforcement of federal immigration law. That broad language could endanger hundreds of thousands of dollars in federal funding received annually by local governments or law enforcement agencies, which don’t honor all federal requests to hold illegal immigrants.

Unless illegal immigrants living in Douglas County are arrested on suspicion of a serious crime, they aren’t likely to be treated differently than any other person booked into the jail. That means as soon as local charges are taken care of, the jail would not detain someone just because federal agencies indicate he or she is an illegal immigrant.

“We have to let them go unless we have the legal paperwork from wherever else stating that there is a reason to hold them, such as a warrant or a deportation order,” said Douglas County Sheriff’s Office Sgt. Kristen Dymacek.

Local leaders say the president’s order puts the county in an unfamiliar position.

“This is all new territory for us, having a relationship with the executive branch of the federal government,” said Douglas County Commission Chairman Mike Gaughan.

Trump’s executive orders on immigration

On Jan. 25, Trump issued two executive orders related to immigration — one promising to build a wall along the country’s southern border and the other regarding sanctuary jurisdictions.

The latter order, Enhancing Public Safety in the Interior of the United States, is in contrast with previous polices that prioritized the deportation of those who have committed serious crimes. Instead, it specifically calls for the execution of immigration laws “against all removable aliens.”

“We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement,” the order states.

To ensure that level of enforcement, the order gives the secretary of homeland security the discretion to designate sanctuary jurisdictions and deem them ineligible to receive federal grants. That covers jurisdictions that violate federal immigration laws such as information sharing as well as a jurisdiction that “has in effect a statute, policy, or practice that prevents or hinders the enforcement of federal law.”

Though the executive order doesn’t specifically spell out whether refusing to honor detainer requests — a two-page form that is not accompanied by an arrest warrant or deportation order — makes a jurisdiction a sanctuary, it does reproach the practice.

The order states that crimes committed by illegal immigrants who were not deported as a result of declined detainer requests will be published weekly “to better inform the public regarding the public safety threats associated with sanctuary jurisdictions.”

The other executive order, Border Security and Immigration Enforcement Improvements, calls for non-federal law enforcement agencies to aid in deportations. In addition to building a border wall, the order states it is executive policy to “empower state and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.”

Those orders have stirred debate nationwide over their legality, and questions over what makes a community a sanctuary.

Put in the middle

County law enforcement agencies are the key players in this debate, as it is typically counties, and in particular the sheriff’s offices, that run local jails.

Some large cities — San Francisco, Seattle, New York — have made sanctuary declarations, and have policies in place that limit local law enforcement’s cooperation with federal immigration. Some have even adopted ordinances that prohibit other institutions, such as schools, hospitals or aid organizations, from asking about a person’s immigration status or citizenship.

There is no legal definition of a sanctuary jurisdiction, but the Douglas County Sheriff’s Office does not consider itself one, nor has it been named one thus far.

When asked whether he thought Trump’s executive orders on immigration pushed his agency to do more, Douglas County Sheriff Ken McGovern said he has no plans to follow any guidelines but those set by standing state and federal laws.

“That’s what we have to operate under until the courts tell us they’re changing it or they’re leaving it the same,” McGovern said. “Law enforcement gets caught in the middle, but we operate on what the law says we should do today.”

The sheriff’s office doesn’t know how many immigration detainer requests it receives because it does not track that information, according to Dymacek. She said that in 2016 there were seven people turned over to federal immigration agents because of a warrant or deportation order.

Neither Lawrence nor Douglas County has made a declaration regarding its cooperation with federal immigration officials, and it will be up to federal officials to decide what communities or agencies are sanctuary jurisdictions, according to the order.

What local law enforcement agencies do and don’t do

A person in Douglas County would only be detained for their immigration status if they were arrested for a serious crime and subject to a deportation order.

The Douglas County Sheriff’s Office doesn’t check immigration status in the line of its duties, nor does it honor the standalone requests issued by federal immigration agencies to detain illegal immigrants.

Specifically, Dymacek said the sheriff’s office does not honor the “informal” 48-hour detainer requests sometimes submitted by federal immigration agencies. As required by law, she said the sheriff’s office honors immigration holds if a warrant for removal proceeding or a deportation order has been issued, and that those inmates are usually picked up within a business day. She noted that procedure goes for all detainers from outside agencies.

“There are specific guidelines by law that we have to follow,” Dymacek said. “If they’re outside those guidelines, then we don’t honor them.”

Those practices are in line with state, federal and case law, but don’t necessarily abide by the broad language of Trump’s executive orders.

The Douglas County Sheriff’s Office practice is not to ask people about their immigration status, whether they are a victim, witness or suspect in a crime, according to Dymacek. For those booked into the jail, the sheriff’s office follows laws regarding information sharing by relaying inmates’ fingerprints and other booking information to the Kansas Bureau of Investigation.

Only those arrested for the most serious crimes would be reported to federal immigration agencies.

State law (KSA 21-2501) requires local law enforcement agencies to fingerprint those who have been arrested for felonies, Class A & B misdemeanors, and Class C assaults, and then send a copy of the fingerprints to the KBI. The KBI then sends those records to the Federal Bureau of Investigation and Immigration and Customs Enforcement, according to KBI Communications Director Melissa Underwood.

Those notifications alert federal immigration agencies that the jail has an illegal immigrant in custody, and could trigger a detainer request to hold the inmate 48 hours beyond when they would otherwise be released to allow immigration agents to take custody.

The Lawrence Police Department’s general practice is that unless someone is in custody for suspicion of a person felony, officers wouldn’t check his or her immigration status or report to federal immigration agencies.

Kansas sanctuary jurisdictions

Since there is no legal definition of a sanctuary jurisdiction, it is difficult to have a definitive list of what counties have policies or procedures that cast them into that category. However, five Kansas counties have made multiple lists of sanctuary jurisdictions: Butler, Harvey, Johnson, Sedgwick and Shawnee.

As far as what got those counties singled out, it may have less to do with their policies and more to do with how public they have been about them. Sedgwick County, for instance, has a similar procedure to that of Douglas County.

The Sedgwick County Sheriff’s Office, whose jurisdiction includes Wichita, has the same information sharing and detainer procedures as Douglas County: it reports inmate information to KBI and does not honor 48-hour detainer requests, according to Sedgwick County Sheriff Jeff Easter. Though that’s not much different from many Kansas counties, Easter said that his agency got on the lists because they adopted an official detainer policy and announced it publicly.

“We had a press conference and everything,” Easter said.

The Douglas County Sheriff’s Office, on the other hand, did not widely publicize its decision to stop honoring 48-hour detainer requests. Another possible reason is that more national attention has also been paid to jurisdictions that include bigger cities, which typically have larger immigrant populations.

Not arbitrary procedures

Though some may see the policies regarding 48-hour detainer procedures as elective or even political, many jurisdictions don’t look at it that way.

Like many counties, Sedgwick included, the Douglas County Sheriff’s Office changed its policy regarding 48-hour detainer requests in response to a court ruling, according to Dymacek.

In 2014, Miranda-Olivares v. Clackamas County ruled that holding a person on a standalone detainer was illegal because it violated a person’s fourth amendment right to be free from unreasonable seizure. In fact, the form now used to request that law enforcement agencies hold an inmate because of his or her immigration status is clearly labeled as voluntary.

Dymacek said because of that ruling, to honor the detainer requests received without a warrant or deportation order would actually put the sheriff’s office at risk of being sued.

“Basically, that provides the case law that we follow,” Dymacek said. “Because otherwise, if we didn’t, we could be subject to lawsuits if we hold people, which was obviously found to be illegal in that case.”

Given Trump’s order empowering non-federal agencies to enforce immigration laws, McGovern said he’s been asked if they will start picking up people because of their immigration status. He said that would violate state laws against racial or biased policing.

“Everybody jumping up and down and saying ‘Well, you’ve got to go out and arrest everybody,'” McGovern said. “Well, I don’t have the authority to do that.”

Because the sheriff’s office is following applicable laws, McGovern said he was not concerned that federal dollars were in jeopardy.

Potential state action against sanctuary municipalities

Regardless of the legal parameters — including laws against biased policing and case law against honoring detainers — some state lawmakers also want law enforcement agencies to increase their enforcement of immigration laws.

Earlier this month, a bill was introduced in the Kansas Legislature that would authorize state police to enforce federal immigration laws. At the same time, another bill was introduced that closely mirrored parts of Trump’s executive order. The bill proposes to ban Kansas cities and counties from adopting sanctuary policies, and threatens to withhold state grants from those jurisdictions.

One difference between the Kansas bill and Trump’s executive order is that the state legislation clearly defines a sanctuary jurisdiction. Included in that definition is any jurisdiction with a policy or practice of not honoring “detainers or other requests” from federal immigration agencies to maintain or transfer custody.

The money

Trump’s executive order on sanctuary jurisdictions threatens to withhold federal funds “except as mandated by law.” Depending on the breadth of enforcement, that could mean anywhere from thousands to millions of dollars for local jurisdictions and governments.

If the state legislation is enacted, additional dollars are at stake.

The Douglas County Sheriff’s Office received about $135,000 in federal grants in 2016, according to Dymacek. Of two of the bigger grants, one provided funds for mental health at the jail and another for technology. The sheriff’s office did not receive any state grants last year, she said.

The Lawrence Police Department received two federal grants totaling about $40,000 in 2016, Sgt. Amy Rhoads said. Those dollars went toward purchasing bulletproof vests and forensic-related equipment. Rhoads said the police department received three state grants totaling about $50,000 in 2016. Those dollars went toward a traffic enforcement program, traffic equipment, and an impaired-driving deterrence program, Rhoads said.

If penalties were expanded beyond just grants received by law enforcement agencies, the dollar values would hit the millions.

Preliminary grant numbers for the City of Lawrence for 2016 show federal grants of about $5.4 million and state grants of about $220,000, according to Nate Blum, senior accountant with the city.

Douglas County typically receives about $460,000 annually in federal grants, according to Assistant County Administrator Sarah Plinsky. The county typically receives about $615,000 annually in state grants, she said.

Questions and calls for action from the city

Two local requests for the City of Lawrence to make a statement regarding how it handles illegal immigrants have also recently been made.

About 20 students from Lawrence High School submitted a petition in December asking that the City Commission make a statement of solidarity with minorities, immigrants and other marginalized groups, as well as to name Lawrence a sanctuary city. The University of Kansas Student Senate also passed a resolution in November asking that Lawrence become a sanctuary city.

City staff have since met with student representatives from both LHS and KU to talk about their requests. In addition, the city manager’s office and city attorney’s office have been developing a set of recommendations that the City Commission will consider in coming weeks.

Viveca Price, a junior at LHS involved with the petition, said that a sanctuary proclamation and codification of how city and county law enforcement agencies handle illegal immigrants would help residents who are uncertain whether Trump’s executive orders will be enforced locally.

“While people may know that you’re a safe organization, saying that and going that extra step is going to make people feel a lot better and it’s going to increase the solidarity,” Price said. “I think it’s necessary to have a statement from the city, to have this put out.”

Casey Toomay, assistant city manager, said that a lot of the conversations in the meetings with students are to try to understand what exactly the groups mean when they request that Lawrence become a sanctuary.

“It’s still a bit of a work in progress,” Toomay said. “The talks, I feel like, have been very productive. Everybody has been very helpful and open and interested in finding common ground and ways that we can try to balance all the different sides of the issue.”

Toomay said those conversations keep with the city’s legislative priority of collaborating with and supporting KU and Haskell Indian Nations University on their legislative issues and agendas.

Toomay said at this point, the city doesn’t have any fully developed recommendations that it is ready to publicize. She said the goal is to have the recommendations, as well as details regarding the city’s federal financing, ready to present to the City Commission at its meeting Feb. 21.

What’s next for the county

Gaughan, of the County Commission, said the commission hasn’t yet discussed the implication of the executive orders, but that constituents have asked him about it.

Gaughan said that he thought the president using his office to threaten federal funding has created confusion and uncertainty.

“I think that it serves more to divide us and to try to drive wedges between people than it does to help us do what I think is our responsibility, which is to look out for the families in our communities and our neighbors,” Gaughan said. “That’s the job of local government is to focus on the well-being of people in our community.”

The executive orders could be destined for prolonged litigation, and McGovern said as with all court battles, the sheriff’s office will continue to follow the standing law until it changes.

“What’s in front of us is what we have to go with as the law,” McGovern said. “If they come in and next week change it or a year from now change it, then we have to readapt.”

Last week, federal immigration agents began sweeps in several states, according to multiple national media outlets. Reportedly, agents prioritized serious criminals but also put in motion deportations of those who had not committed serious crimes.

Gaughan said he thought the issues raised by the executive order were complicated, and likely involved conversations broader than just among law enforcement agencies.

“I’ve always viewed Lawrence and Douglas County as communities that are committed to welcoming everyone,” Gaughan said. “And when it comes to policies like this, I think that the conversation has to be, especially when there are threats attached to them from the federal government, bigger than just the law enforcement locations.”