Oakland – USA Gov Policy

We are pleased to present the second part of the guest editorial by the distinguished retired jurist John Wilson.

Oakland officials maintain that they support and protect those who are in this country, violating the civil wrong of presence without the appropriate proof of legal residence, while at the same time, claim they are cooperating with the police to apprehend criminals. Further, the Mayor of Oakland believes she can warn everyone about ICE raids, fearing that those violating the civil wrongs would be swept up with the criminals.

Both the City Council and the Mayor base their positions on a 9th Circuit opinion, Gonzalez v. City of Peoria (722 F2d 468), which dates back to 1983. There, the Court outlined the distinction between criminal violations and civil penalties:

“We therefore conclude that state law authorizes Peoria police to enforce the criminal provisions of the Immigration and Naturalization Act. We firmly emphasize, however, that this authorization is limited to criminal violations. Many of the problems arising from implementation of the City’s written policies have derived from a failure to distinguish between civil and criminal violations of the Act. Several of the policy statements use the term “illegal alien,” which obscures the distinction between the civil and the criminal violations. In some instances, that term has been used by the City to mean an alien who has illegally entered the country, which is a criminal violation under section 1325. In others, it has meant an alien who is illegally present in the United States, which is only a civil violation. There are numerous reasons why a person could be illegally present in the United States without having entered in violation of section 1325. Examples include expiration of a visitor’s visa, change of student status, or acquisition of prohibited employment. Arrest of a person for illegal presence would exceed the authority granted Peoria police by state law.”

The opinion goes on to state ” nothing in federal law precluded Peoria police from enforcing the criminal provisions of the Immigration and Naturalization Act. Arizona law authorizes local officers to arrest for violations of 8 U.S.C. Sec. 1325 where there is probable cause to believe the arrestee has illegally entered the United States. However, enforcement procedures must distinguish illegal entry from illegal presence and must comply with all arrest requirements imposed by the federal Constitution”. (emphasis added).

To answer the question asked in the headline to this article; no, Sanctuary Cities are not “legal.” These communities are assisting individuals who are committing civil wrongs to continue to commit those acts without fear of the legal consequences of their noncompliance with United States Immigration law. But is that illegal act the same thing as committing a crime? In this context, the answer is, not necessarily.
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If the City of Oakland and Mayor Schaaf are protecting persons who are committing criminal acts, then both are accomplices to those crimes. However, both the City and the Mayor insist they have no intention of aiding those committing crimes – they only intend to protect people committing the civil wrong of illegal presence.

So how does one address the situation where someone is aiding persons committing a civil wrong?

Recently, the Justice Department has brought suit against the State of California. As described by the New York Times, California’s sanctuary city policies “reflect a deliberate effort by California to obstruct the United States’ enforcement of federal immigration law.” No doubt, Justice will be asking the Court to issue an injunction against the state and its sanctuary policies.

When someone commits a civil wrong, suing them in Court, and asking the Court to enjoin them from committing further civil wrongs is always the appropriate way to handle the illegal conduct.

It remains to be seen how the Court will rule – but in general, there can be no doubt that the old adage applies here – two wrongs (illegal presence, and a sanctuary city) do not make a “right” to remain in the United States.

We are pleased to present a guest editorial by the distinguished retired jurist John Wilson

The Mayor of Oakland, California, Libby Schaaf, outraged many when she recently warned those living in Oakland that ICE was planning an enforcement action “within the next 24 hours.” In issuing this warning, Mayor Schaaf acted in defiance of an Executive Order issued by President Trump on January 25, 2017, which empowers the “Attorney General (to) take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

However, enforcement of the President’s Executive Order was blocked by a District Judge of the Northern District of California in November of 2017. Justice William Orrick, an Obama appointee, ruled that the directive was “unconstitutional on its face” since the Order blocked federal funding of sanctuary cities.

Mayor Schaaf’s actions are consistent with the wishes of the City of Oakland, which declared itself a sanctuary city by a unanimous Resolution issued on November 29, 2016. In that document, the City Council stated that they reaffirm “the declaration that Oakland is a City of Refuge for immigrants from all countries,” and that “the Oakland City Council opposes immigration raids.”

In attempting to understand the legality of Oakland’s actions, it is important to note that in its Resolution, the City Council specifically stated that “members of the Oakland Police Department, shall not enforce Federal civil immigration laws and shall not use city monies, resources or personnel to investigate, question, detect or apprehend persons whose only violation is or may be a civil violation of immigration law.” Further, “the Oakland Police Department will continue to cooperate with Federal immigration agencies in matters involving criminal activity and the protection of public safety.”

I have highlighted the words “civil” and “criminal” to emphasize a distinction made by the Oakland City Council. Clearly, the Council has drawn a distinction between the enforcement of “civil violations” of the immigration law, and protecting the public from “criminal activity.”

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Part of the answer is actually very simple – it is not a criminal act to be in this country unlawfully. However, whether Oakland’s Resolution is legal, is not as simple to answer.

8 USC Sec. 1325 describes the crime of “improper entry” into the United States. This is a federal misdemeanor, punishable by no more than 6 months of incarceration, and a fine of no more than $250. Thus, an individual actually caught entering the country illegally, such as a person observed jumping over a border wall, would be committing a misdemeanor.

However, not every illegal immigrant entered the United States illegally. Some have overstayed their visas, or become ineligible for continued residence. 8 USC Sec. 1227 outlines the various classes of deportable and inadmissible aliens. These include those convicted of various crimes, those who made fraudulent statements on their applications, and those involved in terrorism-related activities.

8 USC Sec. 1229 describes the penalty for being one of the classes of persons described in 8 USC Sec. 1227 – deportation after removal proceedings. But deportation is not, and I repeat this, NOT a criminal penalty – it is a CIVIL penalty. Thus, to put this as clearly as possible, it is a crime to enter the country illegally – but it is a civil wrong to be present in the country without proper documentation.

Truly, these are distinctions only a lawyer could love. But if we are to understand just what those who claim to be a sanctuary city are espousing, we must understand this hair-splitting difference.

The Report Concludes Tomorrow.

Quick Analysis

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.