News and Commentary

ICE Hits Back, Issues Subpoenas Against Criminal Aliens In Sanctuary New York City
PAUL J. RICHARDS/AFP via Getty Images

On Saturday, U.S. Immigration and Customs Enforcement (ICE) continued its pushback against the lawless scourge of sanctuary cities — this time focusing upon the particularly recalcitrant government of Mayor Bill de Blasio’s New York City.

ICE “served four immigration subpoenas Friday on the New York Department of Corrections (NYDOC) requesting information on multiple illegal aliens who were criminally arrested in New York City, and yet under New York’s non-cooperation policies officials have refused to honor ICE detainers or even provide ICE with information about the release dates of criminal alien public safety threats,” the agency stated via press release. “Issuance of these immigration subpoenas was necessary because the NYDOC has continued to ignore ICE’s requests for information and cooperation.”

“ICE uses statutorily-authorized immigration subpoenas to obtain information as part of investigations regarding potential removable aliens,” the release continued. “ICE has not historically needed to use its lawful authority to issue these subpoenas to obtain information from other law enforcement agencies as most law enforcement agencies throughout the country willingly provide ICE with information regarding aliens arrested for crimes in the interest of public safety.”

“ICE is using every tool available to obtain information regarding the whereabouts and other relevant information regarding removable aliens from jurisdictions that chose to, or are unable to, cooperate with ICE,” the agency wrote, before providing details about the four criminal aliens — ranging from age 21 to 38 — about whom it recently sought information from NYDOC.

“Like any law enforcement agency, we are used to modifying our tactics as criminals shift their strategies; but it’s disheartening that we must change our practices and jump through so many hoops with partners who are restricted by sanctuary laws passed by politicians with a dangerous agenda,” lamented Henry Lucero, acting deputy executive associate director for ICE’s Enforcement and Removal Operations, as quoted in the ICE press release.

Just yesterday, The Daily Wire’s Hank Berrien reported that ICE has also released a list of nine illegal aliens whom ICE claims have been “released in New York communities” due to the metropolis’s sanctuary policies. “ICE also named six additional illegal immigrants who may be released, some of whom have been charged with murder and child rape,” Berrien noted.

As reported by Fox News, acting ICE Director Matthew Albence “cited statistics saying that last year ICE lodged 7,526 detainers via its New York field office. Those individuals accounted for 17,873 criminal convictions and 6,500 criminal charges. He went on to say that those charges and convictions include over 200 homicides, over 500 robberies, over 1,000 sexual offenses, over 1,000 weapons offenses, and over 3,500 assaults. However, only about 10 detainers were honored by the city, officials said.”

In a Daily Wire op-ed last July, I argued that most sanctuary jurisdictions flagrantly violate federal law — and in particular, 8 U.S.C. § 1373(a), which provides: “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the [Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” I opined:

It is true that the U.S. Supreme Court’s so-called “anti-commandeering doctrine,” most famously articulated in the 1992 case of New York v. United States and the 1997 case of Printz v. United States, stands for the proposition that the federal government cannot forcibly “commandeer” state governments to help the federal government enforce federal law. As Justice Scalia wrote in Printz, “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”

But a plain reading of 8 U.S.C. § 1373(a) does not seem to countenance a violation of the anti-commandeering doctrine. Under § 1373(a), state and local officials are not coerced into “enforc[ing] a federal regulatory program.” Rather, under the text of the statute, all state and local officials are prohibited from doing is issuing a “restrict[ion] [upon the] sending to, or receiving from, the [Department of Homeland Security] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Put simply, the issue at hand in § 1373(a) is not federal commandeering of state actors to enforce a federal program; rather, the issue is the prevention of state and local officials from openly defying and subverting federal law. And the Constitution’s Supremacy Clause plainly forbids the states from openly defying and subverting federal law. The Constitution’s Supremacy Clause, as applied to § 1373(a), therefore prohibits state and local governments from shielding a removable illegal alien from ICE when ICE issues a detainer request on the alien.