Federal Anti-Sanctuary Law: A Failed Approach to Immigration Enforcement and a Poor Substitute for Real Reform

Abstract

In July 2015, Kate Steinle, a thirty-two-year-old San Francisco resident was shot and killed as she walked with her father along a popular fishing pier. Juan Francisco Lopez-Sanchez, a native of Mexico living unlawfully in the United States, was arrested and later confessed to shooting Ms. Steinle. Lopez-Sanchez had seven prior criminal convictions and had previously been deported from the United States five times. Three months before the shooting, Lopez-Sanchez was released from custody by the San Francisco Sheriff’s office despite a request from federal immigration officials that Lopez-Sanchez be detained for transfer to federal custody and, eventually, removal from the United States.

In the aftermath of Steinle’s death, a torrent of accusations and blame were leveled at the San Francisco Sheriff’s office for failing to comply with the immigration detainer, at the City of San Francisco for establishing itself as a sanctuary city where unauthorized immigrants are alleged to be immune from prosecution of immigration law violations, and at the Obama administration for failing to enforce federal laws designed to shut down sanctuary cities. More specifically, it was argued that two federal “anti-sanctuary” laws passed in 1996 made it illegal for San Francisco to refuse to comply with federal immigration authorities’ requests for assistance and that the Obama administration had willfully failed to enforce those laws against hundreds of sanctuary jurisdictions. Had these laws been obeyed and enforced, critics asked, would Kate Steinle be alive today?

This Article offers an answer to this question. It does so by closely examining the history of the 1996 federal anti-sanctuary laws, the ways in which state and federal courts have understood their meaning and purpose, and the evolving role of the statutes in the national immigration debate, in particular the struggle to define the proper role for state and local actors in immigration enforcement. The Article closes with a discussion of the anti-sanctuary statutes in the context of Kate Steinle’s killing and San Francisco’s sanctuary law, concluding that the San Francisco ordinance which mandated Lopez-Sanchez’s release from custody did not violate the anti-sanctuary statutes or any other federal law. On the other hand, San Francisco’s sanctuary provision also did not prohibit the San Francisco Sheriff from contacting federal immigration officials to advise them that Lopez-Sanchez would be released, something that did not happen and that may very well have saved Kate Steinle’s life. Almost two decades of experience with the anti-sanctuary statutes and the recent senseless death of Kate Steinle reveal that an anti-sanctuary approach to immigration enforcement is a failed strategy that diverts resources from enforcement priorities like national security and public safety and diverts attention from seeking real solutions through comprehensive immigration reform.