Soon after the results of the 2024 presidential election were announced, many governors and mayors responded by stating that their jurisdictions would not cooperate with the Department of Homeland Security on immigration enforcement.
There are understandable reasons why these jurisdictions might be concerned about increased immigration enforcement. According to DHS, there are likely more than 11 million foreign nationals living in the U.S. without status, including over 8 million who have lived here peacefully, productively and without incident since before 2010. Many of these individuals now have U.S. citizen children, spouses and other close relatives in their family.
Conversely, DHS also recently told Congress that there are over 650,000 foreign nationals who are in removal proceedings and have been convicted or charged with a crime. Notably, this number does not include individuals who have criminal histories but have not yet been identified or apprehended by DHS. As to that number, DHS reports that for the period between Oct. 1, 2020, through July 22, 2024, state and local law enforcement agencies declined to cooperate with the feds on nearly 24,000 cases where the department asked jurisdictions to identify or hold criminal detainees until they could be placed into DHS custody.
As with many complicated issues, compromise is required. Homeland Security currently only has funding to hold 41,500 foreign nationals in detention at any given time. As millions of people cannot be detained or removed at one time, this means that priorities must be set. If states and cities want to protect their otherwise law-abiding undocumented residents from deportation, they should assist DHS in its efforts to enforce the immigration laws against foreign nationals with known criminal histories.
The legitimate concerns that states and cities have had with regard to cooperating with DHS can be mitigated. First, many states and cities were concerned that foreign nationals who were unjustly arrested for reasons of racial profiling might then be unjustly placed into removal proceedings. But, these jurisdictions are the very entities in charge of their law enforcement officials. If they are concerned about unjust arrests and racial profiling, they can mitigate the risk of this occurring through officer training and oversight.
Second, many states and cities have expressed concerns that they might be held legally liable for detaining foreign nationals at the request of DHS in cases where the foreign national was not lawfully able to be detained. This risk can be mitigated by advance work and communication in allowing DHS access to jails, prisons and police departments so that DHS knows exactly when a foreign national with a criminal record is about to be released.
That way, DHS can apprehend and detain criminal noncitizens for removal purposes without requiring any jurisdiction to potentially violate laws by holding individuals for longer than permitted.
Finally, in the long run, jurisdictions with immigrant communities are likely to benefit in two additional ways by their elected officials’ cooperation with DHS regarding criminal noncitizens. First, the communities where these individuals would have resided will inevitably be safer, as at least some percentage of this cohort would have likely reoffended.
Second, the American people will be far more likely to support enacting generous legal immigration policies if they know there will be immigration consequences levied upon foreign nationals who commit crimes. The last three Democratic DHS secretaries have all agreed that jurisdictions should work with DHS on detaining and removing foreign nationals with criminal records.
Many lawmakers are fond of saying that solving complicated problems requires use of a scalpel instead of a hatchet. Immigration is no exception. But, if states and cities leave DHS with no scalpels in their toolkit, there is no room for dissatisfaction when the inevitable suboptimal results arise from necessitating the hatchet.
Leon Fresco is an immigration attorney in Holland and Knight’s Washington, D.C., office. He focuses his practice on providing global immigration representation to businesses, universities and individuals.
