Recently the Department of Justice emailed a press release that started with a tweet from the Philadelphia mayor's deputy chief of staff.
In the next sentence of its press release, it linked out its news: A man currently in prison on a child rape conviction had pleaded guilty to illegal re-entry.
The implication of the federal department's scantily worded email: Philadelphia was to blame for this man's crime because the city didn't hold the defendant indefinitely in its local jail for Immigration and Customs Enforcement to pick him up and deport him. This is how the dynamic between the Department of Justice (DOJ) and cities that have instituted so-called "sanctuary" policies is playing out. In the absence of success thus far using the legal system to force cities to hold immigrants, the DOJ has been using shame and blame, one incident at a time.
"This is definitely not the first time that the DOJ has sort of come after us as a city, and to be quite honest it kind of feels like they're a bit obsessed with the city," Miguel Andrade of Juntos, a Philadelphia-based immigrants' rights group, said in response to the press release. "I think one of the reasons is that Philadelphia has been on the vanguard of like immigrant rights in this country in the last couple of years." Philadelphia is one of a number of cities that has limited its cooperation with ICE, including by not responding to "detainers"—requests to hold immigrants longer than 48 hours at the request of federal immigration authorities.
The federal government's main argument: that by not sharing information and not heeding ICE's requests, these cities violate federal law and threaten public safety. In the court of public opinion, the agency has tried to drive that point home by highlighting cases in which immigrants committed crimes. In early 2017, the Department of Homeland Security started releasing lists of cities that it saw as non-cooperative, but the practice was suspended when critics pointed to inaccuracies. And while the DOJ highlights incidents where immigrants were charged or convicted with crimes, research shows that immigrants, including those here without papers, are not more likely to commit crime than native born people.
For this press release, the DOJ applied the same shaming approach to Philadelphia.
"The facts of this case highlight the danger posed by the City of Philadelphia's decision to disregard ICE detainers and release previously deported aliens from local custody," said U.S. Attorney William McSwain of the Eastern District of Pennsylvania in the statement linked to the press release.
In response, Philadelphia argues that it was the federal government's job to enforce an immigration offense, and it neglected to do so. A spokesperson wrote in an email: "As we made clear when this matter first surfaced two years ago, the federal government had full opportunity to obtain an arrest warrant for this individual's immigration offense in 2014. If they had done so, the individual would have been released into their custody."
This tug-of-war was the subject of a recent lawsuit the city of Philadelphia filed against DOJ. In a June court ruling, a federal judge sided with the city, calling its policy of not recognizing detainers "completely justified." If the city heeded these requests, it would be "exposing itself to many lawsuits and potentially substantial damages for violation of civil rights." (Several other courts have also questioned the legality of ICE's "detainers.")
In a statement to NBC News, DOJ spokesperson Devin O'Malley called the decision "a victory for criminal aliens in Philadelphia."
In the recent lawsuits in Philadelphia, California, and Chicago, judges have even raised concerns about whether the federal statute the DOJ says these cities are violating is constitutional at all, undermining the premise on which the attacks are predicated.
"This could be the start of a new wave, and a serious limitation on the ability of the federal government to limit local sanctuary policies," said Rick Su, an immigration and local government expert at the University of Buffalo.
Immigrant advocates in Philadelphia recently saw another win when the city expanded the concept of sanctuary to the data-sharing realm (as many other jurisdictions are trying to do). They were able to convince the mayor to forgo renewing an agreement that allows ICE to scour a specific police database called the Preliminary Arraignment Reporting System (PARS), which contains granular, real-time arrest data including addresses, social security, and country of origin. According to the American Civil Liberties Union of Pennsylvania, ICE has used this trove of information "to engage in surveillance, racial profiling, and fishing expeditions" in the past.
Activists and even Philadelphia Mayor Jim Kenney have argued that tools like PARS sow mistrust and discourage immigrants from contacting the police if they witness crimes.
"We've had community meetings in a room full of like 40-50-60 people, where we've raised the question, 'does anybody in this room feel safe contacting the police if they're a victim of a crime or if they witness something?' and the room is completely silent; that's what we're trying to prevent," Andrade said.
Ironically, both sides' attacks on each other come down to public safety, but the people they see as requiring protection are different. In response to the DOJ's press release, the city of Philadelphia accused the DOJ of justifying its agenda through a faux concern for the safety of children, for instance: "Keep in mind—the DOJ press release says 'those of us in the law enforcement business should be doing everything in our power to protect vulnerable children from predators like this individual," the city's spokesperson wrote via email. "If the government is serious about protecting vulnerable children, perhaps they should start by protecting the vulnerable children who they are still holding in detention."