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The Appeal Podcast: How Local Governments are Pushing Back Against ICE

With Appeal senior reporter Debbie Nathan.

Photo illustration by Anagraph. Photo by John Moore/Getty Images

With the swearing in of President Trump in January 2017 came an aggressive rightward shift in America’s immigration policy, specifically with regard to Immigration and Customs Enforcement. Our guest, Appeal senior reporter Debbie Nathan, has been documenting how municipalities throughout the United States, especially those in deep red Texas, are pushing back using everything from mass protests to direct action to lawsuits.

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Adam Johnson: Hi welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on Twitter @TheAppealPod and on Facebook at The Appeal magazine’s main Facebook page and as always you can subscribe and rate us on iTunes. With the swearing in of President Donald Trump in January 2017 came a broad rightward shift in America’s immigration policies specifically with regard to Immigration and Customs Enforcement, otherwise known as ICE, which has increasingly been used as a kind of strike force against immigrant communities, harassing, documented and undocumented a like. Our guest, Appeal reporter Debbie Nathan, has been documenting how municipalities throughout the United States, and specifically those in Texas, are pushing back against these forces using everything from legal support to direct action to lawsuits.

[Begin Clip]

Debbie Nathan: There’s a law that was passed in the Texas legislature that has a short list of crimes that can be cited rather than arrested and charged as misdemeanors that you can get a ticket. And one of those is possession of small amounts of marijuana. And so now in Austin, if you’re stopped and you have a little amount of marijuana, you are always cited now rather than arrested. And of course that’s very protective of immigrants because once the immigrant gets into the jail the immigrant is a sitting duck for ICE, but with a citation you don’t go to jail. We believe this is very helpful for all of Austin’s population and particularly as we know the over representation of people of color and poor people who are subject to this kind of law enforcement.

[End Clip]

Adam: Thank you so much for coming on Debbie.

Debbie Nathan: Thank you.

Adam: So you’ve written recently and done some really good reporting on the ways in which municipalities are pushing back against both the state and federal immigration policies. Uh, specifically the federal policies under Trump. You wrote an article on November 9th called, “States Are Enacting Their Own Bans Against ‘Sanctuary City’ Policies,” that detailed some of the efforts that are going on in this regard. I want to start by talking about what’s referred to generally as the Freedom Cities movement. What does that mean in the context of ICE? I know that with Trump there’s sort of a whirlwind effect where we can lose track of all kinds of racist policies and actions that are going on, but, but can you sort of clear the air here and talk about what the current status of ICE’s policies are in these cities? Um, and what quote unquote “liberal” cities and municipalities are doing to push back?

Debbie Nathan: ICE has for a while had a policy where it demands that, um, for example, sheriffs who run jails, tell ICE when an immigrant is getting ready to be released from jail. And so that gives ICE the opportunity to show up and do an interview about this person’s immigration status. And this has actually been going on for quite a while. It was going on under the Obama administration. And um, but when Trump came in, by the time Trump came in, there were several municipalities, there were counties and there were cities and states as well that had passed policy saying, you know, we’re not going to share this information with ICE. And so the DoJ under Trump started saying, we are coming down on you, if you are not going to be sharing information with ICE we’re citing a law called US Code 8 §1373, which is an Immigration and Nationality Act law that says that local law enforcement cannot prohibit its officials from sharing information with ICE. So the DoJ said, we’re just going to take away your JAG J-A-G grants, which are Justice Assistance Grants. They are like a lot of money that are given to localities to beef up their criminal justice enforcement. And so, um, you know, that was the main threat that was made against many, many localities. Some of those localities where, um, New York, Chicago, Philadelphia, Los Angeles, San Francisco, New Orleans, there were counties, there were smaller cities, there were states including California and Vermont. So it’s, it’s really interesting in order to see how cities have been able to push back lately against ICE’s demands that they’ve based on 1373, we have to look at a lawsuit that was brought by the governor of New Jersey against the National College Athletic Association and the National Hockey League and the NBA and the NFL. And um, it’s a, it’s a lawsuit claiming New Jersey’s right to allow gambling, sports gambling. So it turns out that back in the nineties, Congress enacted this law called the Professional and Amateur Sports Protection Act, which basically outlawed sports betting nationwide except for a few grandfathered states that already had it. So New Jersey brought this case that ended up going all the way up to the Supreme Court and it was decided by the Supreme Court earlier this year. What they decided was that this Act, um, violated the 10th Amendment, you know, which that’s the part of the Constitution that reserves for the states what the federal Constitution doesn’t cover. But also the court decided that it, this sounds so military, it also violated what’s called the Commandeering Principle. You ever heard of that?

Adam: No. What is that?

Debbie Nathan: So the Commandeering  Principle says that unless Congress passes a whole set of regulations covering particular activities, Congress can’t order local governments to regulate in a particular way.

Adam: Okay.

Debbie Nathan: Okay. So, so basically the Supreme Court said that, um, you know, this, this lawsuit, they decided for New Jersey because they said that this Professional and Amateur Sports Protection Act was unconstitutional. Now, going back to what these local municipalities did when they, they also, sometimes were sued or they sued the DoJ and they argued that 1373 was unconstitutional using this Supreme Court decision based on sports gambling. And so, um, there have been judges now in Philadelphia, Chicago and Los Angeles have said that’s right, 1373 for the same reasons is unconstitutional. The California court actually said it looks like it’s unconstitutional, but um, you know, what we can expect is that they’re going to be a lot more lawsuits brought by these local entities against 1373. So it looks like 1373 is going to be knocked out. But this is a thing that it leaves a lot of, I wouldn’t say a lot, but several states, this phenomenon still leaves several states under the thumb, not even of 1373, but of their own legislatures. So Mississippi, for example, Tennessee, Iowa, they recently, their own state legislatures passed laws saying that law enforcement cannot refuse to share information with ICE. And the one actually, the one state that everybody probably knows about, who’s interested in this, is Texas. So last year it was very contentious and made national news, Texas passed a law called Senate Bill 4 or SB4 and not only does SB4 say that, um, for example, a sheriff cannot refuse to give information to ICE, you know, I mean, it’s not just that the sheriff’s going to like not get some funding, but that sheriff can also be arrested and charged with a crime. So SB4 before is very draconian and there’s no way that any municipality in Texas can go and sue based on the unconstitutionality of that. It is just not gonna work. And so, um, what’s really interesting is that there are communities in Texas where they’ve sort of tried to, particularly city councils, they’re trying to figure out work arounds to protect immigrants.

Adam: Yeah. So, so what you have here, broadly speaking, just to kind of backup, is that there’s an interplay between the federal government, which is obviously very right-wing and very hard on immigration and then you have these municipalities which are generally speaking more liberal. Uh, they obviously have huge immigrant communities, um, and then you have certain states that are kind of an extra tier of pro-Trump immigration that’s sort of preemptively outlaw cities from doing certain things. Now, one of the cities you highlight, which is I think pretty much the quintessence of this dynamic, is Austin, Texas, go Longhorns, they’re my, they’re my alma mater, where the pushback is coming from the city. And you highlight one council member there, a gentleman by the name of Greg Casar, who teamed up with groups like Grassroots Leadership, United We Dream, Workers Defense Project, they’re trying to make these ordinances to prevent police from doing these sorts of things. Um sort of this whole, ‘show me your papers’ routine and throwing people in jail. Can you talk about this case and what the current legal status of these efforts are?

Debbie Nathan: Yeah. Um, so first I should say that Greg Casar is a member of an organization called Local Progress, which is kind of a subsection of a national organization called the Center for Popular Democracy. So Local Progress is this national network of progressive elected officials from cities and counties and towns and school districts and other governments across the country and they get together and they talk about how they can do things on a sort of very local level. So Greg Casar is on the Austin City Council, as you mentioned, and is a member of Local Progress, he teamed up with the groups that you mentioned to start doing things like, I find this very creative, for example, he was looking, really giving a close look at what Texas law allows. Okay. So one thing that Texas law allows is the Fifth Amendment right not to answer if a border patrol agent or an ICE officer asks you what your legal status is. You don’t have to answer. And so, um, what the police are doing an Austin now because of Greg Casar’s work with the city council, is that they, when they stop people, if they ask them what their legal status is, at the same time that they ask, they have to tell the individual, you know, you have a right not to answer.

Adam: Right because a lot of people wouldn’t know that, obviously.

Debbie Nathan: Yeah, that’s right. Most people don’t know that. And um, you know, another thing that they’ve done and I think that this represents not just a concern for immigrants, but a concern for the people of color in all of these communities that are interested in doing this, there’s a law that was passed in the Texas legislature that has a short list of crimes that can be cited rather than arrested and charged as misdemeanors, that you can get a ticket, and one of those is possession of small amounts of marijuana. And so now in Austin, if you’re stopped and you have a little amount of marijuana, you’re always cited now rather than arrested. And of course, that’s very protective of immigrants because once the immigrant gets into the jail, right? The immigrant is a sitting duck for ICE, but with a citation you don’t go to jail. And you know, I mean, clearly this is very helpful for all of Austin’s population and particularly as we know, the, um, over representation of people of color and poor people who are subject to this kind of law enforcement. So those are a couple of things that are happening in Austin and then when I did the article, there are other members of Local Progress in Texas. There’s a guy on city council in Dallas is um, you know, gone to meetings and met Casar and he’s doing the same kind of thing in Dallas. His name is Philip Kingston. He also started a cite and release policy that’s similar to the one in Austin and it covers a few misdemeanors including marijuana possession. When I talked to him, he told me that he was going to ask the Public Safety and Criminal Justice Committee of the city council to also require the police tell detainees that they don’t have to answer questions about their immigration status. He was like, he said, you know, once he got that going, he would go to the full council. And then I spoke with a council person in El Paso who is also a member of Local Progress and she said that she was sort of waiting for some more progressive political developments on city council and she was planning to do this as well. So, um, this is what’s going on in Texas and you know, again, like there are actually progressive little towns and smaller cities in Texas that haven’t ever heard of this, you know, it’s still a very fledgling kind of a situation. And it’s interesting to me as a reporter because sometimes when I would go and talk to local officials in other places in Texas, they’ve never heard of this. And just the reporting itself, it’s kind of weird, the reporting itself does a little bit of seeding. It’s very interesting.

Adam: One of the criticisms that sanctuary cities have gotten from the left is that a lot of these nominal sanctuary cities have carve outs. I know that specifically in Chicago, where this show is recorded, Rahm Emanuel has been criticized for presenting himself as a defender of immigrants, but there’s a lot of carve outs for when these so-called sanctuary cities can assist ICE. And one of them is, for example, an outstanding criminal warrant. If they’ve ever been convicted of a felony or have an open felony case, that happened in one major case, and one major factor that is, I think the more egregious end of this, is whether or not they’re on the city’s gang database or the police’s gang database, which is notoriously broad and includes a lot of people. Is notoriously racist as well. Pretty much anyone who has vague ties to gang can get on it. Can we talk about what the limits of even sanctuary cities are and what that term means in different contexts?

Debbie Nathan: Yeah, I mean there are a lot of carve outs. The one that I’m aware of in Chicago, um, has to do with task forces. I remember reading about people that were just working at a bodega, you know, at a convenience store, and a ICE and police task force came in and raided the store and arrested everybody working there, including the cashier because they were looking for somebody there. I think the, the absentee owner of this place, you know, they suspected him being involved with something or other, whether drugs or gang. Um, so yeah, I mean there are many situations where, you know, these local officials are still working with ICE and a lot of times they’re sort of soft spots situations. They have to do with the public’s perception. You know, that it’s really important to control gangs or it’s really important to control drug distribution rather than possession. Actually it’s interesting in Austin, talking about task forces, in Austin they don’t feel that they can pro forma refuse to do task forces. They can’t just as a matter of principle, but the city council person was telling me that it’s a very valid refusal to say, you know what? ‘We don’t have the resources for this. We’ve got other things that we need to do with our cops then join your task forces.’ And um, again, you know, I think if you come up with some concrete reasons why this is just a misuse of resources at a particular time, that works. So I mean some of these things that people have to do, the reasoning or the rationale is, you know, I don’t know how far it can go because you always come up against, as you said, these carve outs. But I think the fact that, that these local lawmakers are thinking about these things and trying really hard to act on them is something that really needs to be, um, you know, really brought to the public, especially in places like Texas.

Adam: One of the things we talked about offline is how people in these rural areas, especially in South Texas and Southern California and a lot of agriculture, a lot of worker hotspots, who don’t have access to these more generally liberal cities. These people are cut off from these kinds of liberal enclaves. Um, what are efforts to actually reach out to those people or trying to go where they are? I know this is an issue with immigrant courts. There’s a lot of rural counties in Texas that are very conservative and people who are, who are out there, who are undocumented, who find themselves in these immigrant courts, they are three, four, five times more likely to be held in jail without a reasonable bail. What are activists doing to try to reach out to these more obscure places, uh, that aren’t necessarily sanctuary cities, but are kind of in a place that have a high concentration of immigrants in rural areas?

Debbie Nathan: You know I live in South Texas, I live right on the border and I’ve lived on the border for years and I would say that the situation is complicated in that first of all, immigration detention is different from criminal detention. And second of all, the border is so utterly inundated from here all the way to California, not only, I mean, with border patrol agents. Now in Texas, you also have, you have this flank. I mean it’s literally an army of state troopers who have been working with the border patrol for a very, very long time, for years. So they hand people over. They stop them pretextually and they hand them over to the border patrol and there’s always a border patrol agent within five minutes away. And so the stop, even if the stop is completed, supposedly for the ticket, for the traffic violation, there’s a border patrol agent that’s going to up before the tickets been written. And so that’s considered legal, right? You’re not making a new stop because the guy shows up while you’re writing the ticket or, or you just prolong the stop. You say things like, ‘well, you know what  I need to go back to my car and get something, you just wait right here, sir,’ while you’re waiting for the ten minutes instead of five minutes from the border patrol. So I mean, it’s such an exceptional situation on the border. And then people who are taken directly into immigration detention do not pass go, do not pass the jail. They don’t even go to jail, you know. So, um, the only thing that I could say is that when you combine that with the fact that there are no immigration lawyers in places like South Texas that could work pro bono, there’s literally two or three and yet this is the place where most people are arrested under those circumstances, right? So you have an extremely beleaguered activist community and I’ll tell you another thing about that activist community, is that and I’m speaking more about Texas I guess then Arizona and California, you have many, many people that themselves are DACA or they’re green card holders, they’re not US citizens. They’re terrified to do anything that’s going to result in their arrest as activists, which is going to put them in danger of being deported. I mean there’s just multiple reasons, Adam, why this kind of activism is really hard and it’s not that some of these communities are not liberal. The man that I mentioned, you know, the mayor of La Joya, Texas. La Joya is two miles from the border as far as city hall is, in that, in that city. But he feels extremely constrained because his economy is so based on the presence of border patrol and DPS and because he’s just worried about the material well being of his city. You look up in the sky in La Joya and you see drones and you look down and you see razor wire and you see the military and you see border patrol and you see state troopers. It’s really, really hard in communities like this to do the kind of work that’s being done up in Austin, but I think that once it really gets going in other parts of Texas, there will be the possibility of doing it right on the border. Border communities are not necessarily conservative communities, they’re just militarized communities.

Adam: What groups do you see pushing back against the federal and state focused on deportation and ICE?

Debbie Nathan: Grassroots Leadership in Austin and Workers Defense Project are really doing strong, you know, aggressive and creative work to push back. On the national level, there’s an organization, the Immigrant Legal Resource Center, ILRC. It’s a group of lawyers, they’re based in California and in DC and they just provide really, really good resources to activists about the law. I mean, you know, it took me like five minutes to talk about 1373 and to talk about a gambling decision from the Supreme Court, but activists often need to know a lot about immigration law and a lot about case law and these guys are really good resources.

Adam: Yeah, that was great. We’ll definitely check those out. Debbie Nathan I really appreciate you coming on the show.

Debbie Nathan: Thank you so much Adam.

Adam: Thank you to our guest Debbie Nathan. This has been The Appeal podcast. Remember, you can follow us on Twitter @TheAppealPod, on Facebook at The Appeal magazine’s main Facebook page and as always you can subscribe and rate us on iTunes. The show is produced by Florence Barrau-Adams. The production assistant is Trendel Lightburn. Executive producer Sarah Leonard. I’m your host Adam Johnson. Just a heads up, we’ll be taking a holiday break over the next coming weeks and we’ll see you in the new year.