Legitimacy in Flux:
A Case Study of Immigrant Sanctuary Policy in New York City
By Mary Bluestocking Malmö University
May 2021
Supervisor: Mikael Spång
International Migration and Ethnic Relations: Master's Thesis (SAIME) Spring 2021: VT2021-IM636L-GP081, 15 credits
Mary R. S. Bluestocking
Word count: 16124
Abstract
This paper seeks to understand policy in the City of New York which limits cooperation with federal authorities for purposes of immigration control. It does so by qualitatively analyzing a set of legal-administrative documents. The key, policy features are identified along with the interests and forces which shaped those features over time. An arsenal of supplemental, legal material as well as the findings of legal scholars are consulted for interpretation in
hermeneutic fashion. Using a theoretical framework consisting of the structure of the legal system of the United States and it norms, plus certain immigration-related, national trends, this research concludes this policy is the legacy of an unbroken, bi-partisan lineage of administrations dating back to the 1980s – an evolving product of the tensions between the legal norms and the national trends. The policy reinforces sovereignty from the federal government, and it does so largely for purposes of constitutionality, administrative functionality and civil rights.
Keywords: Sanctuary City, Sanctuary Policy in New York, Immigration Control, Civic
Policy and Immigrant Affairs, US Federalism
Table of Contents
Abstract...2
Acknowlegements...5
Chapter One: Introduction...6
1.1: Aim...6
1.2: Research Questions...7
1.3: Delimitations ...7
Chapter Two: Data & Methods...9
2.1: Data...9
2.1.1: The Primary Data Set...9
2.1.2: The Supplementary Data Set...10
2.1.3: Data Selection Method...10
2.2: Method and Methodology...11
2.2.1: Choice of Case...11
2.2.2: Research Methods...12
2.2.3: Case Study...12
2.2.4: Methodology...13
2.2.5: Reliability & Validity...14
2.2.6: Role of the Researcher & Philosophical Positioning...15
Chapter Three: Background & Review of the Field...17
3.1: The Sanctuary Concept in Practice & Language...17
3.2: Literature which Situates this Thesis...19
3.3: Contribution...21
Chapter Four: Theoretical Framework...22
4.1: The U.S. Legal System...22
4.1.1: The Common Law System...22
4.1.2: State vs. Federal...23
4.1.3: The Fourth and the Fourteenth Amendments...25
4.1.4: The Legality of Sanctuary Policy...26
4.1.5: Gardner’s Framework of Norms and “Heresies”...26
4.2: The Trends...27
4.2.1: The Trend of Stigmatization of Sanctuary Cities ...28
4.2.2: The “Crimmigration” Trend...28
4.2.3: The Trend of Federal Centralization of Police Power...29
Chapter Five: Analysis & Findings...29
5.1: Part I: Overview of the Key Elements and Historical Phases...30
5.1.2: Phase I: The Reign of the Koch Executive Order: 1989 to 2003...30
5.1.3: Phase II: The Solo Run of the Bloomberg Executive Orders: 2003 to 2017...30
5.1.4: Phase III: Introduction of the Cuomo Executive Orders: 2017 to August, 2020..31
5.2: Part II: Tracing the Developments...32
5.2.1: Key Feature 1: “Don't Tell” (Phase I-III: 1989-August, 2020)...32
5.2.2: Key Feature 2: “Don't Ask” (Phase II & III: 2003-August, 2020)...39
5.2.3: Key feature 3: Requirement of Judicial Warrants or Orders (Phase III: 2017- August, 2020)...42
5.3: Contemporary sanctuary...45
Chapter Six: Conclusions...47
6.1: What is the Policy?...47
6.2: Why the Policies?: Reasons and Concerns Evident in the Text Itself...47
6.3: The Arc of Development...48
6.3.1: Overview...48
6.3.2: Crimmigration, Commandeering and Disentanglement...49
6.3.3: N.Y.C. v. U.S. (2d Cir. 1999)...49
6.3.4: The Wave of Change...50
6.4: Further Research...51
References...52
Literature...52
Executive Orders...56
Resolutions...56
Legal Code...57
Case Law...58
Other Data Documents ...58
Index of Terms...59
Appendices: Select Legal Materials...61
§1373...61
The EOs & Guidance (2017)...61
Acknowlegements
I would like to express my gratitude to the following individuals for their kind and generous
support as I labored on this thesis: Prof. Mikael Spång, Rebecca Clendenen, Prof. Nabil Al-
Tikriti, and my mother, Anda Aravena.
Chapter One: Introduction
When United States (U.S.) President Trump took office in 2017, so-called “sanctuary cities” became a frequent topic in the media for being targeted by the White House.
Sanctuary cities or sanctuary jurisdictions are U.S. cities or other sorts of jurisdictions in the US which have a policy to limit cooperation with the federal
1authorities for the purpose of immigration law enforcement or immigration control
2. Trump has repeatedly characterized the administrations of sanctuary cities as corrupt and treasonous for harboring “criminal aliens” who are overrunning the nation. President Trump called for the arrest and criminal prosecution of executives of sanctuary jurisdictions (Trump as cited in Gómez, 2017). Is the characterization of sanctuary cities as lawlessness or rebellious legitimate? According to legal scholars (Lasch et al., 2018, Gardner, 2019) sanctuary policy has been shaped and reshaped in accordance with the law, and is therefore lawful – generally speaking. The specifics of how each sanctuary jurisdiction manages the issue of legality is yet rather obscure, however. How exactly is this lawfulness achieved? This thesis explores this by devoting its scope of inquiry to the sanctuary policy of just one city. That is, the City of New York (NYC) – based on both the number and proportion of its immigrant population as well as on the position of NYC as one of the first cities in the US to adopt sanctuary policy, NYC is arguably the most
significant sanctuary city in America. The question of what constitutes the policy in NYC will be followed by an examination of how the legality (or, perhaps, the justification for
administrative rebellion) has been constructed. In addition, an understanding of the reasons for the efforts of the State and City
3administrations is pursued.
1.1: Aim
This paper seeks to understand the sanctuary policy in the City of New York. Because NYC is within NYS and therefore under the NYS constitutional jurisdiction, this research project includes both city-level and state-level policy. This inquiry is restricted to the
1 Hereinafter the term federal refers to the central government apparatus and/or administration of the nation as a whole. Hereinafter “the federal government” may also be: “the federal authorities” or “the Feds”.
2 In the context of the immigration policy, the term “sanctuary” has many different meanings and uses. In this paper, however, the usage will be restricted to this definition.
3 The term state is used herein strictly to refer to one or any of the 50 states of the union which form the USA – as opposed to referring to any nation as a whole. “State” – capital “S”, like a proper noun – is used herein to indicate either: the legal power that is the State in the US federal system the legal entity that is the
administration of NYS specifically. The same treatment will be given to the word “city” when referring to the legal entity-proper that is the administration of NYC (“City” – capital “C”).
sanctuary policy instituted by a collection of mayoral and gubernatorial executive orders (EOs)
4. The defining features of the policy are identified, then I study their transformation over time and interpret this by asking what the formative interests and forces have been. By directly studying these original policy documents, we have the opportunity to gain insight into the realm of legalistic and bureaucratic processes in immigration control. We discover what the precise areas of the governmental and inter-governmental concern contention have been and how the question of lawfulness in sanctuary policy – or more generally: in policy concerning immigration control and civic management – is being addressed (or perhaps shirked).
1.2: Research Questions
1. What are the defining features of the sanctuary policy in the EOs?
2. How is the legitimacy of sanctuary policy in NYC produced on a legal-administrative level? Why is the policy how it is?
a) When and how did the features of this policy come into being?
b) What are the reasons for the policy provided by the text itself?
c) What explanations for the form and evolution of the key features can we reasonably entertain based on our theoretical framework and our
supplementary, primary and secondary materials?
1.3: Delimitations
The scope of this study is any executive orders that establish sanctuary policy in NYC by way of the City administration or the State administration. Any other jurisdictions within NYS but not within NYC are beyond the scope of this thesis, as are any other jurisdictions outside of NYS. The secondary materials and literature of the greater field will be considered as they may pertain to NYC.
4 An executive order is a special power reserved for the executive branch of a government to issue a directive or a “legislative enactment” — as Mayor Koch calls it (N.Y.C., N.Y. Exec. Order, 124 (1989), Att.). It is a legal process which does not involve legislation. An EO is technically not law, although it functions like law. EOs can be subject to judicial review and they can be revoked directly by a successor executive. The mayor of NYC derives this power from the NYC Charter, the NY Governor, from the NY Constitution and the President of the US, from the U.S. Constitution.
The time period of focus is the “Contemporary Period” – that is, that policy that was still in-effect as of August, 2020.
The theoretical framework includes 3 trends. This list is non-exhaustive. The ability of the theoretical framework to explain all the reasons presented in policy documents themselves is limited. Findings related to other potentially relevant trends or framework elements is
discussed in Further Research, Chapter 6.
Chapter Two: Data & Methods
2.1: Data
There are three categories of data:
52.1.1: The Primary Data Set
Those NYC mayoral and NYS gubernatorial EOs which establish sanctuary policy and which remained in effect as of August, 2020. This data was subject to qualitative text analysis (QTA) and constitutes the main focus of this study which all the supplementary data and the legal literature was used to interpret.
Item no. 1: N.Y.C., E.O. 34 (2003) (Mayor Michael Bloomberg) (See Appendix fig. 2).
Hereafter if alone: “Bloomberg EO 34”, or if in conjunction with the other Bloomberg EO: “the Bloomberg EOs”.
Item no. 2: N.Y.C. Exec. Order No. 41 (2003) (Mayor Michael Bloomberg) (See Appendix fig. 3). Hereafter, if alone: “Bloomberg EO 41”, or if in conjunction with the other Bloomberg EO: “the Bloomberg EOs”.
Item no. 3: N.Y.S., Exec. Order No. 170 (2018) (Governor Andrew Cuomo) (See
Appendix fig. 4). Hereafter if alone: “Cuomo EO 170” “N.Y.S. 170” or if in conjunction with the other Cuomo EO: “the Cuomo EOs”.
Item no. 4: N.Y.S., Exec. Order No. EO 170.1 (2018) (Governor Andrew Cuomo) (See Appendix, fig. 5). Hereafter, if alone: “Cuomo EO 170.1”, or if in conjunction with the other Cuomo EO: “the Cuomo EOs”.
5 See all the documents in this thesis which are historical, primary sources at: Understanding “Sanctuary Cities”—Online Appendix: Westminster Law Library. (Last updated June 6th, 2018.)
http://libguides.law.du.edu/c.php?g=705342 [https://perma.cc/ E2GZ-EPM5]
2.1.2: The Supplementary Data Set
Other primary source documents which are legal or administrative documents of
authorities involved in matters of sanctuary policy in NYC in any time period. This data was also subject to QTA, but was used for the purpose of making sense of the primary data set.
Item no. 5: N.Y.S. Assembly Resolution No. 1457. (June 11th, 1986)
Item no. 6: N.Y.C., E.O. 124 (1989) (Mayor Edward Koch) (See Appendix, fig. 1) Hereinafter: “the Koch EO”
Item no. 7: The opinion of the Second Circuit Court in City of New York v. United States, 179 F.3d 29, 36–37 (2d Cir. 1999)
Item no. 8: New York Attorney General (NY AG) Schneiderman (2017) “Guidance Concerning Local Authority Participation in Immigration Enforcement and Model Sanctuary Provisions.” along with “Supplemental Memorandum to” [...] (2017) Herein at times referred to as: Guidance (2017) or just: Guidance . A legal guidance which Schneiderman issued the local authorities and policymakers of NYS, regarding questions of immigration enforcement and sanctuary provisions, just several months before the Cuomo EOs came out.
2.1.3: Data Selection Method
I selected my data set when my background research lead me to the discovery that sanctuary policy in NYC is based, in part, on these five EOs (Lasch et al., 2018) . I supplemented that with searches through the records of the NYC City Hall website (www.1.nyc.gov) and the NYS Governor’s Office page on the NYS website
(www.governor.ny.gov) in August, 2020 to ensure my account of sanctuary policy EOs was
comprehensive and up to date.
There are a number of local laws I found in the process which also established sanctuary policy in NYC.
6These local laws were not included in this study because upon examining them, I determined formal legal training would be required in order for me to include them.
2.2: Method and Methodology
This is a case study using within-case analysis (Perri 6 & Bellamy, 2012). The unit of analysis is the case of sanctuary policy in NYC.
2.2.1: Choice of Case
NYC is the most populous city in the US, (U.S. Census Bureau, n.d.) where 11% of the population are aliens
7of lawful status and 5.3% are undocumented (U.S. Census Bureau, 2017 as cited in NYC Mayor’s Office of Immigrant Affairs (MOIA), 2019, p. 13)
8. Furthermore, the New York (NY) Metropolitan Region is a major site for international air traffic. In 2019, the NY Metropolitan Region funneled 51 million passengers on international flights (The Port Authority of New York and New Jersey, 2019). In such a case, the question of legality is an especially impactful one.
Moreover, NYC is an influential city among municipal policy makers. In 2014, NYC founded the Cities for Action Coalition which has a membership of 200 U.S. mayors (NYC MOIA, 2019). NYC held the 2017 Global Mayors Summit on Migration and Refugee Policy and Practice. In 2018, NYC worked with other cities across the globe to participate in the United Nations Global Compacts on Migration and Refugees. NYC also participated in the 5th Mayoral Forum in Marrakech that same year where they signed the Marrakech Mayors Declaration “Cities Working Together for Migrants and Refugees” which was later delivered at the Intergovernmental Conference for the adoption of the Global Compacts on Migration.
(NYC MOIA, 2018). A prime purpose of all these activities is to discuss best practices for
6
Namely: N.Y.C., N.Y., Local Laws No. 62 (2011), No. 21 (2013), No. 22 (2013), and No. 58 (2014), No. 59 (2014)7
I may at times use term “alien” instead of the more popular “immigrant” – particularly if I want to emphasize that I am speaking of all present, non-citizens (visitors included) and also not of naturalized immigrants. I use“alien” strictly in that ancient and traditionally legal sense, and have no intention of making any disrespectful allusions to extraterrestrials as seen in the colloquial usage today.
8
Another 20.8% of the city population consists of naturalized immigrants (according to the figures of the US Census Bureau, 2017 as cited in NYC MOIA, 2019, p. 13)).policy development which serves immigrant needs and to represent the concerns of localities regarding migration to the national-level, multi-lateral community.
2.2.2: Research Methods
The research aims are achieved through subjecting the primary and supplementary data to QTA . The process includes content analysis (White & Marsh, 2006, p. 26, p. 34) and
interpretation by way of cycling through a collection of secondary sources which is the research of certain legal scholars in a hermeneutic circle
92.2.3: Case Study
Treating sanctuary policy in NYC as my case allowed me to embark on a research process that was exploratory and inductive in nature. I originally started with questions which I discovered had already been answered. Because I aimed to do original research, these discoveries steered my reformulations. By default, I developed a familiarity with the field.
10I chose within-case analysis as opposed to a between-case analysis, firstly because an exhaustive search has produced no other comparable case studies.
11The second reason for within-case analysis is because the case of New York
12is sufficiently complex.
13By devoting myself to NYC alone, I am able to adequately address those research questions which extended beyond the descriptive. I can operationalize verstehen (Weber as cited in, Perri 6 & Bellamy, 2012, Ch.10, p. 12) (empathetic understanding) by which I could draw interpretive conclusions which are reasonably warranted.
14I am able to focus enough on the primary source materials and the cultural and
9 That worldly, relativist and subjectivist version of the hermeneutic circle developed by Martin Heidegger (1950) (as cited in Malpas, 2018).
10 Case-based research (CBR) allows the flexibility “to identify and follow interesting leads, including those that might throw light on an important issue that may not have been identified before the research began.” (Perri 6 & Bellamy, 2012, Ch.7, p. 4)
11 That is, no peer-reviewed case study of any US sanctuary cities, where at least one city was studied in-depth, and which focused on internal government process and which includes qualitatively analyzing policy
documents.
12 Hereinafter the term “New York” or “NY” – standing alone and without any other letter will be used in order to be all-encompassing when naming the two entities of NYS and NYC separately seems unhelpful.
13
Sufficient internal complexity being a criteria for justified within-case analysis is discussed by Ragin and Becker, 1992; Stake, 1978 (as cited in Perri 6 & Bellamy, 2012, Ch 7, p. 3)14 The advantage of within-case analysis for delving beyond the descriptive is mentioned by Perri 6 & Bellamy (2012, Ch.7, p. 4).
structural context unique to NYC, to be able to explore the holistic significance of the policy features and their development.
15Thirdly, I did not do a between-case analysis is because my theoretical framework was based on that legal-structural framework of the American federal system, where each state is unique and sovereign.
2.2.4: Methodology
This hermeneutic methodology works in perfect concert with within-case analysis. It provided me with a model for how to derive meaning from my primary data set with intensive, within-text analysis as well as from cross-text analysis all while bringing in supplementary primary sources for consultation. I was able to “outsource” aspects of my operation by consulting the findings of scholars of other disciplines. From cycling through the material, themes and patterns emerged, my quantity of reference points for interpreting the primary data grew until I was able to begin to draw well warranted inferences and conclusions.
To illustrate: I started the process with qualitative content analysis (White & Marsh, 2006, p. 26, p. 34) – scanning the EOs for relevant themes, commonalities and differences. This began the evolution of a conceptual code of recurring themes. For example, I noticed a recurring element of what I cognitively categorized as “non-disclosure”, another was “equal access”.
The hermeneutic cycle began simultaneously. Once a code was developing, I began reviewing what the supplementary data says or what the legal scholars say that relates to any of these elements (e.g. “equal access”). I would also note differences between the various appearances of the classification of elements of the code (e.g. all the instances of “non- disclosure”) and ponder the significance of their appearance and form or transformation. For example, I noticed that the Koch EO stood for 14 years before it was struck down by
Bloomberg EO 34. Why? Furthermore, the non-disclosure policy in Bloomberg EO 34 also looked extremely similar to that in the Koch EO. Is it the same? Why was the Koch EO
15 The advantage of within-case analysis for tracing development over time is noted in Perri 6 & Bellamy, 2012, Ch. 5, p. 11
revoked to be replaced with something so similar? How exactly are they different? To solve the puzzle, I plotted out every single word change between the two as I pondered this.
The question of why the policy is how it is, is approached on several planes:
• Tracing changes and consistencies between the EOs through time. (Narrative.)
• Noting what reasons the EOs themselves state for their policy, including comparing the reasons stated EO to EO. (Description of face-value explanations)
• Drawing from the supplementary data (contextualization by expanding the range of references from within the same culture) plus the legal scholarship to develop context for the content of and developments between the EOs (contextualization via
scholarship).
• Applying the theoretical framework (the structure of state vs. federal, the three trends and Gardner’s norms). (Interpreting through framework.)
In this research process, I make inferences to description and to explanation and also to interpretation (Perri 6 & Bellamy, 2012, p. 10-11). I would say that interpretation is the main activity of this research project.
2.2.5: Reliability & Validity
Reliability is achieved by perpetually asking myself whether my theoretical framework and reference materials could explain the data to a fair and reasonable degree. I use reason and empathy as my tools for drawing inferences using the body of primary source documents, the legal analysis and my theoretical framework in my hermeneutic circle. The more deeply I can empathize with the policy writers, the less I am projecting my own subjective
perspective. It is by achieving empathy, that I develop knowledge which is a contribution to
the field. The concept of causation is irrelevant to an interpretive study such as this. There is nothing positivist about this research project.
I am drawing inference in the tradition of Max Weber who argued that models and theories must be ‘adequate at the level of meaning’” (Weber as cited in, Perri 6 & Bellamy, 2012, Ch.10, p. 12). Like Weber, I am interested in the motives of the actors who I am studying. If we can come to a reasonably plausible understanding of the sanctuary policy in NYC, then we have achieved one of what Weber argued is the unique purpose of the social sciences which is to understand why people do what they do and how they understand themselves. Therefore, the external-validity issue of generalizability is besides the point.
However, I can and do situate my research into greater bodies of research in my review of the field (Chapter 3) and I discuss the question of how this research is relevant to current
developments in the international sphere in Further Research in Conclusions (Chapter 6).
My explanations for my selection of case and data, methods and methodology show how my internal validity is achieved. I justify my choice of components for my theoretical framework in the theory chapter (Chapter 4).
2.2.6: Role of the Researcher & Philosophical Positioning
My ontological positioning is relativistic and my epistemological subjectivist. (Perri 6 &
Bellamy, 2012, p. 64). I am not interested in engaging in normative questions, so I have not found it difficult to feel politically neutral as I interpret.
I am very much from the culture that I am studying. NYC is my native land where I was born and bred. I grew up in a household where both parents were City employees. I was educated in the public school and university systems. I am younger than the policy writers, I was a young adult when we were hit in the 9-11 attacks. While doing this research project, by applying my theoretical framework to myself, I eventually discovered that my original perception of the situation had been biased by my own generational positioning within the culture.
16I consider my subjective positioning to be generally advantageous since empathy
16 I discuss this epiphany in Findings, Part II, “Don’t Ask”
and contextualization are my main research tools, my methodology is hermeneutic and my goal is interpretation.
1717
Ethical considerations are not a concern because all the texts I am analyzing are public record.Chapter Three: Background & Review of the Field
3.1: The Sanctuary Concept in Practice & Language
The concept of sanctuary as an act or status in the Pre-Modern Age was one and the same as that of asylum. The concept can be traced back to ancient Greece where a place of refuge or protected status could be granted by a benefactor to someone fleeing pursuit and capture (Herodotus, 5th century BCE, as cited in Perseus). Sanctuary policy was carried on through Christian tradition since the Medieval Age in Europe (Shoemaker, 2011). In the US, the sanctuary concept appeared perennially in different deliberative arenas such as slavery and the Vietnam War (see Foner, 2017, O’Donoghue, 2017, Busse, 2019). The sanctuary movement which protects undocumented immigrants to the US from arrest for deportation originated in the early 1980s during the Reagan administration. At that time, the civil wars in Guatemala and El Salvador were ongoing and faith groups began to aid these refugees in avoiding deportation. By 1987, there were 450 sanctuary groups, most of which were
churches (Mitchell, et al., 2019). In response, the administrations of 24 cities adopted policies that were inspired by the grassroots movement.
Some jurisdictions announced they were “sanctuary cities” (e.g. San Francisco, Los Angeles.), many adopted policies which were meant to assist the undocumented Salvadoran and Guatemalan refugee populations specifically, at times even helping them evade
deportation. Many passed laws which decidedly opposed the federal federal government's immigration policy , many put out public statements condemning the federal government's refusal to grant asylum to the Central American refugees (Cuison Villazor, 2008, p. 142).
Many jurisdictions also implemented policies to benefit the greater immigrant population in addition to the Central American refugees, and many implemented policy to limit cooperation with federal authorities — especially so-called “don’t ask, don’t tell”-policies for local authorities (Cuison Villazor, 2008, p. 142). It was not until later that the intense legal debate over federal vs. subfederal enforcement of immigration law emerged (Cuison Villazor, 2008, p. 143). New York was part of this early movement. Some scholars who have studied the history are Shoemaker (2011) and Cuison Villazor (2008).
Ever since the 1980s movement, the terms using the word sanctuary in the context of
immigration politics have taken on multiple usages in addition to the usage which I adopt for
this paper. “Sanctuary”-terms can refer to the civil sector grassroots movement – particularly church movements. “Sanctuary policy” can refer to policies which are intended to help undocumented immigrants come into alignment with the law to some capacity, such as removing barriers to obtaining a driver’s license or to enrolling children in school. “Sanctuary city” or “sanctuary policy” can indicate those jurisdictions or policies which expressly seek to assist undocumented people in evading arrest and deportation by federal immigration
enforcement (Cuison Villazor, 2008).
“Sanctuary”-terms are now in use outside of the US as well. In Bauder's overview of the sanctuary movements in various countries, Bauder says “urban sanctuary policies and practices generally serve the purpose of accommodating illegalized migrants and refugees in urban communities” (Darling & Bauder, 2019, p. 25). Darling & Squire (2013) did a study of the City of Sanctuary popular movement in the UK which aims to serve refugees waiting for their asylum processing. The movement does not involve helping the refugees materially nor protecting them from any authorities. Rather is one of creating a hospitable discursive environment in the civil life of the town, including winning statements of support from the city council.
Despite decades of political and public discourse on the immigrant sanctuary topic, the
“sanctuary”-terms have remained legally undefined until a recent attempt in the Trump Interior Enforcement Executive Order (2017) where sanctuary jurisdictions are defined as those that “willfully refuse to comply with 8 U.S. Code § 1373
18. However, legal scholars Lasch, et al. (2018) point out: § 1373 has a narrow scope of application (2018, p. 1773). I discuss my findings on how this attempt has gone over in NY in Chapter 5. For our purposes now, I will say simply that “sanctuary”-terms should be understood as colloquial term and therefore with nebulous meaning.
Cuison Villazor (2008) studied the meaning of “sanctuary” in the US context in public and political discourse, including its usage for stigmatizing purposes. Her aim was to understand the meaning and deployment of this nebulous term within the context of the US immigrant sanctuary movement. Other than developing a history, another main way she does this is by analyzing the deployment of the word in the language. Her philosophical
perspective is relativist and subjective. She understands the significance to be shifting based
18 (E.O. 13768 of Jan 25, 2017, 82 FR 8799 § 9a at 8801. Hereinafter also: “the Trump Interior Enforcement EO”) See Appendix: “§1373”.
on the intentions, thinking and context of the speech. Her Postmodern perspective of seeking subjective meanings in language usage is not all dissimilar to my own. Her findings to constitute a part of my theoretical framework.
3.2: Literature which Situates this Thesis
The greater body of literature which this thesis situates itself among is that which has to do with border control (Guiraudon & Joppke, 2001), Moses (2006), border crossing
(Cunningham, 2004), policy making between governments and levels of government regarding the rights and statuses of migrants (Boswell & Geddes, 2011 provide a survey of the European Union), citizenship (Isin, 2002), the ethics of the rights of undocumented aliens (Carens, 2008).
Jennifer Ridgley (2008) uses the same meaning of the term “sanctuary city” as I do. A political geographer, Ridgley aims to create and understanding the jurisdictional debate which forms the basis of the sanctuary city controversy. She does this with a persuasive essay, which explains how a trend of criminalization of immigration developed in the legal and political spheres. She does so by offering an narrative that traces back 20 years, which highlights what she identifies as the main historical, developments in the sanctuary cities movement. Ridgley refers to the government in flat, monolithic terms. Her analysis does not take legal structures into account. She casts grassroots activism as the source of resistance to
“the government”.
19Criminologist Lippert (2005) produced a detailed account of the legal disputes between church groups providing sanctuary to undocumented immigrants and the authorities in Canada. Basing his analysis on Foucault, Lippert finds that in the process is one sovereign power (the church groups being one) divvying up the power of governmentality between themselves.
There is very little research which, like this thesis, focuses primarily on either sanctuary practice within government or on the intersections between state and federal jurisdictions regarding immigration law enforcement. This is the specific category this thesis inhabits.
There are papers by the legal scholars Lasch et al. (2018) and Gardner (2019), one by a legal historian Neuman (1993) and a doctoral dissertation by anthropologist Peter Mancina (2016).
19 Paik (2017) is another scholar whose work flattens thing in this same way.
There is also the legal historian Shoemaker (2011), however his focus is on sanctuary practice in Late Antiquity and Medieval Britain.
Mancina’s dissertation (2016) is also unique for being the only study I have found that focuses on one sanctuary city exclusively (that being: San Francisco). It is an ethnography which aims to bring to light the complexity of the internal, bureaucratic dimension of sanctuary policy practices in conjunction with municipal deportation practices. Drawing on Foucault’s analysis of power, Mancina describes what he calls sanctuary power (the power exercised through the municipal regime of how to determine when to protect and when to report an undocumented immigrant) and identifies the “achievements” (author’s quotes) of this process – meaning the resulting establishment of procedural norms. He studies how these practices have been shaped over time (from 1980 to 2010) by the interrelating and competing interests of various stakeholders in the governmental, legal and civil ecosystem. The
materials include a diverse set of legal documents and record such as policy, court testimony of undocumented immigrants, the debate among the legal representatives of various
stakeholders, a documented case of City employees violating the policy. He also studies the experience of individuals from these different sectors.
Lasch et al. (2018) and Gardner (2019) constitute the literature which this thesis is most directly related to, as my theoretical framework is based primarily on their work. Both papers strictly use the term(s) “sanctuary” (policy/ city/jurisdiction) the same way I do. Their primary method is qualitative analysis of legal documents and case law. Both papers seek to improve understanding of sanctuary policy in the current era.
The article by Lasch, et al. (2018) is a collaborative project by professors of both
immigration law and criminal law. The article is a study of the sanctuary cities movement in the Trump era. They: [A] identify the main features of the Trump legal strategy to combat sanctuary policies and expand enforcement in the interior for deportations, [B] outline the most typical features of sanctuary policy across hundreds of policies from dozens of
sanctuary jurisdictions, spanning 39 US American states going back to the beginning of the
sanctuary movement in in the 1980s [C] assess what the most common legal and policy
justifications presented by local jurisdictions for their sanctuary policy are (Lasch, et al.,
2018, p.1704). The authors identify and outline the criminalization of immigration (Lasch, et
al, 2018). They find Trump is a particularly avid proselytizer of this conceptualization. It was
this article that spearheaded my inquiry into policy documents which became this thesis.
Modeling my point of focus after this article enabled me to utilize their findings about the national trends in my analysis of the case of NYC. Their findings also formed a basis for my theoretical framework.
The article by Trevor G. Gardner (2019) focuses specifically on police federalism
20, and uncooperative federalism and combative federalism
21. The article situates itself in the body of applied criminology literature and national security federalism literature. Using Bourdieusian field theory, Gardner develops an understanding of contemporary immigration enforcement and sanctuary policy by mapping out the “field” of police federalism. He does so by
investigating: [A] the legal and cultural historical precedent of the federal government’s efforts to intervene in and (ultimately) co-opt local law enforcement bodies into the federal armature and [B] the federal government’s recent trend (beginning with the Age of President Bush Jr.) of characterizing sanctuary jurisdictions as aberrant and condemnable. I found Gardner’s account of the trends of change and his interpretation of the field into designated norms/ “orthodoxies” and “heresies” to be extremely illuminating, thereby his work became a component of my theoretical framework.
3.3: Contribution
I contribute a case study on arguably the most important sanctuary city in the US today, which is uncommon for its focusing, not on the civil sector, but on internal governmental procedure. My research is also unique for devoting its study to the case of sanctuary policy in just one city alone. Lastly, by making the focus of my study the original documents by which sanctuary policy has been enacted in NYC, I thin the barrier between the public and the policy makers, bureaucrats and lawyers. By peering into their language and discourse, words like “government” and “the law” lose the monolithic, reductive, thought-stopping effect. At the same time that we gain a deeper understanding of sanctuary policy, the process of the way
20 Police federalism “is meant to indicate the relationship between the federal government and state and local governments with respect to police” (italics added. That is, sworn law enforcement personnel at the subfederal level of government). The concept also encompasses the relationship between states in regard to their respective internal police institutions. (Gardner, 2019, p. 2)
21
uncooperative federalism: a norm “in which subfederal governments derive most of their governing authority from the discretion they hold in their enforcement of federal law [...]In the framework of uncooperative federalism, federalism “creates a multiplicity of institutions with lawmaking power through which to develop consensus.” [..] combative federalism, is a norm of “unqualified subfederal government abstinence from the enforcement of federal law as the ultimate check against the expansion of federal government power [...]” (Gardner, 2019, p. 6).competing interests are metabolized into the policy is witnessed. The dimensionality of this governmental space is revealed.
Chapter Four: Theoretical Framework
4.1: The U.S. Legal System
Taking after Lasch et al. (2018), Gardner (2019) and Neuman (1993), I use the structure of the US legal system – its structure, laws and norms in legal interpretation or practice.
4.1.1: The Common Law System
The United States Constitution is the supreme legal document of the US. Article V (U.S.
Const. art. V) sets up a system for amending the document. The Constitution has been
amended 27 times (Whitehouse.gov, n.d.). The US legal system uses the common law system.
This is a legal system which originates from England and is common in the British
Commonwealth and England’s former colonies. A main difference between the common law system and the statutory law
22system in that in the latter system only legislators make law and in the former both legislators and judges create law. In the common law system, the opinions and rulings of courts form what is called case law. Case law is how the judiciary has interpreted legislation. For example, the US Constitution is legislation, and then there is all the case law that evolved from various parties bringing cases which had original challenges to the question of how to interpret the legislation. Jurisprudence
23from case law is how we have legal doctrines.
Because of this, as I consider the legal structures that form the context of my study, my analysis includes doctrines and jurisprudence which the legal scholars have noted as relevant to the issue of sanctuary cities in general.
22 Also known as “civil law”. This is the system of the democracies of Continental Europe. This is not to be confused with what is called “civil law” within the US system. Within the US system, civil law is the polar opposite of criminal law. Civil law does not decide criminality, but liability. Elsewhere in this paper, when the term “civil law” is used, it is used in the US context.
23 Legal opinion or legal interpretation by members of the judiciary.
4.1.2: State vs. Federal
The Tenth Amendment
24delegates the division of powers between the federal government and the States using a principle of dual sovereignty
25. Dual sovereignty is based on the Tenth Amendment, and legal jurisprudence (Neuman, 1993). It is an orthodox principle. Dual sovereignty creates a system of two, mutually sovereign governments existing within the nation: the state government and the federal government (See Index of Terms). Any person present in any state in the US is actually under the jurisdiction of – not one – but two constitutions: that of the US, and that of the state in which she is located or resides. Each of the states have certain structures and powers which mirror those of the federal government such as a state constitution, state common law
26, state law. The fact that the state legal apparatus is not simply subordinate to that of the federal, is apparent in the fact that state supreme courts have the power of judicial review of not only state but also federal laws (just as the federal courts have the power of judicial review of both federal and state laws).
However, “the supreme Law of the Land” (U.S. Const. art. VI, paragraph 2) is the US Constitution, and the federal supreme court is supreme over the state supreme courts.
Because of the doctrine of dual sovereignty, the law and public infrastructure as well as history and norms of everything within the jurisdiction of the State
27differs greatly between the 50 states that form the Union.
24
Hereinafter: U.S. Const., Am. X. will be: “the Tenth Amendment” or simply: “the Tenth”25 The principle that powers which are not reserved by the federal government, go to the States.
26 State common law – as opposed to federal common law. State common law is adjudicated in the state court system under the state constitution.
27 – as opposed to that of the federal government.
Fig. 1: Government Powers Under U.S. Federalism. (Encyclopedia Britannica, n.d.)
Some relevant jurisdictional dividing lines (all of which relate to the Tenth Amendment and State vs. Federal):
The plenary power doctrine: an orthodox, legal doctrine which holds that the federal government has sole power to regulate all aspects of immigration and border control as an attribute of their sovereignty (Feere, 2009).
“police power” (Gardner, 2019) falls outside the purview of the federal government and is within that of the States, based on the Tenth Amendment.
Civilian criminal law was originally, exclusively in the purview of state governments
until the Prohibition Era (Gardner, 2019) — at which point, the federal government
began developing its own federal criminal law. Today, federal criminal law and state
criminal law remain largely autonomous from one another. Correctional facilities are
normally either state facilities or federal facilities each under one or the other of these two, separate governments (state or federal).
28 The anti-commandeering doctrine. This doctrine is based on the Tenth Amendment and is the result of the landmark ruling New York v. United States, 505 U.S. 144 (1992) where the US Supreme Court ruled that the US federal government cannot take possession of or otherwise co-opt State infrastructure and resources. (Lasch et al., 2018p. 1754)
The understanding of the division of these powers forms a dual-analytical framework of State vs. Federal. This framework was used to understand and interpret the data. As a result of this framework, I was sensitive to any references or indications of jurisdictional divides and any inter-jurisdictional struggles evident in the text and, when found, I would first turn to the question of whether this is a Tenth Amendment, State vs. Federal issue in my efforts to understand the what the matter was.
4.1.3: The Fourth and the Fourteenth Amendments
Two other US Constitutional Amendments which proved important for my analysis:
The Fourteenth Amendment “Equal Protection”-clause which states: [no State shall]
“deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (U.S. Const. Amend. XIV,
§1)
29This clause forms the basis of anti-discrimination policy and equal access policy in a multitude of sectors in US-American life.
The Fourth Amendment
30protection against unreasonable search and seizure. (U.S.
Const. Amend. IV) This amendment figures largely in policing and in issues of civil immigration detainers.
3128 In the case of NYC, there is a correctional facility under the jurisdiction of the City at Rikers Island whose common name is “Rikers”. This facility, therefor is an example of the sorts of institutions which are within the domain of this thesis. Being under the City, Rikers is subject to the sanctuary policy of both the NY
gubernatorial, as well as the NYC mayoral EOs.
29
Hereinafter: U.S. Const., Am. XIV. will be “the Fourteenth Amendment” or “the Fourteenth”30
Hereinafter: U.S. Const., Am. IV. will be “the Fourth Amendment” or “the Fourth”31
civil immigration detainer: a request produced by the federal immigration authorities to get local law enforcement to hold an individual who is present in the country unlawfully until they can apprehend thatAlthough the NY State Constitution is also referenced in the documents used in this study which are primary sources, this thesis does not discuss that primarily because none of the legal scholarship I rely upon studies the NY State Constitution, and secondarily because none of those documents are in the primary data set.
Lasch et al. (2018) and Gardner (2019) and Neuman (1993) are all legal scholars whose conclusions are the result of qualitative, empirical legal research – this is the method that lawyers use. Therefore, I considered my consultation of the opinions of Lasch et al. (2018) and Gardner (2019) and Neuman (1993) to be akin to consulting any lawyer on questions of legality.
4.1.4: The Legality of Sanctuary Policy
Lasch, et al., 2018 conclude that Trump’s claim that sanctuary policy is unlawful is untrue due to (A.) the separation of criminal and immigration law (B.) the plenary power doctrine, and (C.) the Tenth Amendment, anti-commandeering commandeering doctrine (Lasch, et al, 2018, p. 1754). Therefore, subfederal jurisdictions are well within their rights to limit their cooperation with federal immigration authorities
32and they have no obligation to resolve legal conflicts with the federal government in favor of the federal government (Lasch, et al, 2018, 1773-4).
Therefore, I adopted this conclusion into my theoretical framework, regarding the sanctuary policy in New York City to be fully recognized as lawful and well founded – an is therefore, not unlawful, radical nor rebellious as Trump has characterized it.
4.1.5: Gardner’s Framework of Norms and “Heresies”
In addition to the legalistic approach of Lasch et al. (2018), my theoretical framework includes Gardner's theory (Gardner, 2019) which he developed by applying the philosophy of Pierre Bourdieu to interpret the arc of development in the legal landscape. Gardner found that combative federalism is the “orthodoxy” or norm and the “heresy” is centralization of police power
33in the federal apparatus. He identified a trend towards such centralization of power
individual. Also called an “ICE detainer” after the responsible division of ICE.
32 At times may be referred to as Immigration (capital “I” like a proper noun) or by the specific division names:
U.S. Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection (CBP) 33 police power: the power, or right to police (Gardner, 2019, p. 12)
which could be at the point of being able to subvert the norms entirely. Gardner’s application of theory and his findings forms an important component of my theoretical framework. Using Gardner’s theoretical framework allowed me take legal and cultural norms into account and it raised my awareness of the interpretive process all practitioners and executors of law are involved in. I adopted the understanding of what the norm and the “heresy” are after
Gardner
34. I also adopted Gardner’s finding that there is a trend of change which “threatens”
to usurp the norm. Adopting Gardner's norms enabled me to appreciate the significance of the changes in the policy beyond what a more straight-forward view of the legal structure could have achieved. For example, combative federalism being a norm made it so that once I learned that sanctuary policy had been in place in NYC since 1989, I understood this to be more normal than radical on the part of NYC.
Gerald L. Neuman (1993) is a legal scholar who studies the immigration law in the first century of the US (1776-1876). According to Neuman, there is a misconception in the legal world and as well as with historians that immigration law didn't exist in the US before 1875 (Neuman, 1993, p.1834). Based on his findings, he argues the plenary power doctrine is not and never was inevitable in US federalism (Neuman, 1993, p.1840). Neuman’s finding and argument inform my interpretation of what is orthodoxy as I apply Gardner’s framework in my analysis. Because of Neuman’s work, I interpreted the documents with the understanding that the plenary power doctrine is the historical norm.
4.2: The Trends
Scholars have noted a number of trends in immigration politics and in federal vs. state power relations. Many have drawn theoretical connections between these trends and aspects of the sanctuary city phenomenon or the sanctuary movement. I used these trends to form part of my theoretical framework for interpreting the text. They were most valuable for
interpreting why the policy feature came into being or changed when they did in the arc of time.
34
The norm being combative federalism and the “heresy” centralization of policing power under the federal government.4.2.1: The Trend of Stigmatization of Sanctuary Cities
Cuison Villazor (2008) studied the shifting meanings of the term sanctuary city and identified a trend towards stigmatization of the term. She notes that after the 9-11 attacks, popular opposition to the immigrant sanctuary movement grew considerably and the term
“sanctuary” became a term from which politicians who wanted to appeal to these interests sought to distance themselves. The term shifted from being a generally positively regarded concept with positive deployment, to a stigmatized concept and, thus, negative deployment.
For example, NYC Mayor Rudolf Giuliani denied that NYC was a sanctuary city in the Republican presidential debate of November 28th, 2007 (Republican Party Nov. 28 Debate, as cited in Cuison Villazor, 2008, p. 134).
35In the public discourse, the term often carries the implication that the jurisdiction in question is practicing irregular or rebel law in defiance of the federal government. In the case of the rhetoric of President Trump, this is an outright accusation (as evidenced by the quantitative text analysis of Gómez et al., 2017).
These findings on the usage of the word is supported further by legal scholar Gardner’s study of the relationship between the federal government and sanctuary jurisdictions (2019, p. 1).
Gardner noted a trend of stigmatization by the federal government of jurisdictions for their choosing sanctuary policy. Trump’s Interior Enforcement Executive Order (2017) is widely regarded as part of this trend, as the EO was used to operationalize the singling out of sanctuary jurisdiction for the purposes of denying them federal funding (Lasch et al., 2018).
4.2.2: The “Crimmigration” Trend
The legal scholars define the informal term crimmigration as an entanglement of criminal law with (civil) immigration law (Lasch, et al, 2018) Gardner (2019). Lasch et al. (2018) and Gardner (2019) identify crimmigration as a trend which serves a legal tactic which might allow the immigration authorities expanded power and reach. On a conceptual level,
crimmigration can be understood as the criminalization of immigration in the popular mind.
This development runs parallel to the stigmatization of sanctuary cities.
35 This is even as the Koch EO remained in effect through Giuliani’s term as mayor.
4.2.3: The Trend of Federal Centralization of Police Power
Scholars (Lasch, et al., 2018, Gardner, 2019) have identified a trend where the federal government is centralizing police power and co-opt local, law enforcement infrastructure in the name of immigration enforcement.
The federal government is expanding its reach into the domain of the States in a manner which is decreasingly based on the traditional legal norm that the consent of the local jurisdictions is required for any co-opting to take place and is, instead, increasingly
predicated on the legal opinion that the federal government is entitled to commandeer local resources
36. Gardner traces this trend back to the first half of the 20th Century, although 9-11 marked an escalation of the trend. Both studies say the Trump administration
37is the
presidential administration under which this trend has been most advanced (Lasch et al., 2018, p.1713).
Chapter Five: Analysis & Findings
In my analysis of the sanctuary policy documents, I identified three key policy features and three historic phases of policy development. The key policy features are “don’t ask,”
“don’t tell,” and the requirement of judicial warrants and orders. In Part I, I introduce the key polices that I have identified. This section is organized by EO starting with the earliest to establish sanctuary policy in the history – creating a time-line for the key features. I divide that timeline into three phases. Part II, is organized by key feature as this is where I go into each feature in depth, presenting my findings and as much of the the analysis that warrants them as possible. For each key feature, I first trace their development within and across the EOs over time, presenting my reasoning and conclusions about why they appeared when they did and why they changed (if applicable). Next, I present what explanations for the key features I was able to derive from analysis of the reasons stated in the EOs themselves.
36See “Theory: State v. Federal” for more info.
37 The administration most current at the time of their writing.
5.1: Part I: Overview of the Key Elements and Historical Phases
5.1.2: Phase I: The Reign of the Koch Executive Order: 1989 to 2003
The earliest document from the administrations of New York which made any reference to the immigrant sanctuary movement was N.Y.S. Assembly Resolution No. 1457. (1986).
The resolution declares NYS a “sanctuary” for Salvadoran and Guatemalan refugees. (p. 216- 217) and appeals to the federal immigration authorities to grant the refugees temporary asylum among other statements of support and appeal. It also states that NYS “opposes” the deportation of “all law abiding Salvadoran and Guatemalan refugees” and that NYS “finds that immigration and refugee policy is a matter of federal jurisdiction”(p. 217). However, because it does not establish any specific policies which actually oppose the deportations, I deem this not to be a sanctuary policy document, but a symbolic resolution meant to give political support to the cause of the sanctuary movement. Cuison Villazor (2008) described the phenomenon of administrations issuing symbolic resolutions in support of the refugees.
I conclude that the first sanctuary policy in NYC
38to be that which was established by Mayor Koch in 1989. The Koch EO was revoked by Mayor Bloomberg in 2003 with Bloomberg EO 34. Nevertheless, ever since Mayor Ed Koch signed this EO in 1989, every mayor of NYC — Democrat and Republican — has upheld some form of sanctuary policy via EO ever since. The Koch EO can be summarized as having one key feature, which I refer to as a “don't tell”-policy – that is, a policy of non-disclosure regarding information
pertaining to an individual’s immigration status.
My grand summary of the sanctuary policy in NYC from 1989 to 2003 as established by EO is, therefore: “don't tell”.
The policy was binding for employees and agents of the City.
5.1.3: Phase II: The Solo Run of the Bloomberg Executive Orders: 2003 to 2017
The second phase of policy began in 2003, when Mayor Bloomberg revoked the Koch EO and replaced it with new sanctuary policy EOs via Bloomberg EO 34 and Bloomberg EO
38 Because NYC is withing NYS, anything done on the state-level would, then affect NYC.
41 (the latter being an amendment to the previous). Like the policy of the Koch EO, this new policy also contains the key feature of “don't tell.” In addition, this policy contains what I call
“don't ask”-policy regarding the matter of gathering information pertaining to the immigration status of individuals.
My grand summary of the policy in NYC from 2003 to 2017 as established by EO is in- essence: “don't ask” and also “don't tell”.
The policy is binding for employees and agents of the City. This policy was still standing as of August, 2020.
5.1.4: Phase III: Introduction of the Cuomo Executive Orders: 2017 to August, 2020
In 2017 and 2018, Governor Andrew Cuomo issued two executive orders which imposed sanctuary policy on the state-wide bureaucratic body (Cuomo EO 170 and Cuomo EO 170.1).
In NYC, these gubernatorial EOs stand alongside the mayoral EOs. Although the
administration of New York City ultimately gets its powers from the State of New York, the City has its own, distinct bureaucratic body – meaning City employees are not State
employees nor vice versa. For example, police officers (officers of the New York Police Department) are law enforcement officers which are employees of the City, whereas, state troopers are law enforcement officers which are employees of the State. Therefore, these State EOs for the first time enact sanctuary policy in a second bureaucratic body which is also present and operating within NYC-municipal limits, and the number of public offices and personnel present and operating in NYC under sanctuary policy has been increased.
Additionally, with the Cuomo EOs mandate policy requiring judicial warrants (for arrest) or judicial orders (meaning, issued by a judge) in order for civil immigration detainers
39from the federal immigration authorities to be honored.
My grand summary of the policy in NYC from 2017 to August, 2020 is, therefore: “don't ask” and also “don't tell”. These policies are binding for both employees and agents of the City as well as for employees and agents of the State. There is also a requirement of a judicial order in order for any warrant from Immigration to be recognized. This latter policy is
39
A request produced by Immigration to get local law enforcement to hold an individual who is present in the country unlawfully until ICE can apprehend that individual. Also called an “ICE detainer”.binding only for employees and agents of the State. These policies were still standing as of August, 2020.
5.2: Part II: Tracing the Developments
5.2.1: Key Feature 1: “Don't Tell” (Phase I-III: 1989-August, 2020)
“Don't tell” is the oldest form of sanctuary policy in NYC. It has stood in one form or another since the Koch EO – 32 years and counting
40. The reasons stated in the EOs themselves show this policy is primarily the result of the policy makers’ concerns for the proper functioning of the society (the municipality or the state, respectively). The City “don’t tell”-policy underwent a revision with the revoking and re-establishing of the policy in Bloomberg EO 34 in 2003 – apparently in response to N.Y.C. v. U.S. (2d Cir. 1999). The Cuomo EOs appear to also follow the lines of how to craft “don't tell” after N.Y.C. v. U.S. (2d Cir. 1999), but they do so in a manner that is more precise than the Bloomberg EOs do. The Cuomo EOs seem to craft their “don’t tell”-policy to slightly different ends than those of the Bloomberg EOs.
Lasch et al. (2018, p.1745) found that policies which limit the sharing of information of residents (either regarding immigration status or regarding immigration authorities) have been very common in the sanctuary movement throughout the nation. Lasch et al. say “don’t ask” and “don’t tell”-polices are are “perhaps the most common type of sanctuary policy”
(2018, p.1739).
The Development of “Don’t Tell” Over Time:
The relevant differences between the “don’t tell”-policies in these executive orders center around precisely how and where to limit or generalize these protections.
“Don’t Tell”: Phase I: 1989 to 2003. Koch EO.
“No City officer or employee shall transmit information respecting any alien to federal immigration authorities [with exceptions]” (Koch EO, § 2).
40 – or at least as of August, 2020
