San Diego County’s controversial new policy ending the use of any county resources for federal immigration enforcement will likely have to be resolved in court, those on both sides of the debate say, as the measure draws national attention just weeks before President-elect Donald Trump’s inauguration.
On Dec. 10, the Board of Supervisors passed the resolution aimed at ending transfers to ICE custody as well as notifications of release, building on state law passed in 2017 to limit cooperation with federal immigration authorities. The new policy eliminates the exceptions for individuals convicted of certain crimes like assault and battery, requiring the federal agency to get a judicial warrant for any detentions.
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Within hours, Sheriff Kelly Martinez said she would not enforce the policy, continuing to voluntarily notify ICE of the release of anyone convicted of the crimes outlined as exceptions in state law.
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“Right now, if DHS and ICE, if they want to detain somebody for an allegation of an immigration violation, there is a process to do that: they could obtain a warrant,” said immigration attorney Andrew Nietor. “But what's been happening in parts of the country, not just in San Diego, is a lot of local law enforcements are now collaborating with ICE, and they're essentially allowing ICE to bypass that step of getting a warrant.”
The new policy ends the county’s proactive collaboration and notification – a move that’s now taking center stage amid criticism from Trump allies.
On Dec. 23, the America First Legal Foundation, headed by Trump advisor Stephen Miller, sent a letter on so-called “sanctuary policies” to 249 elected officials across the U.S., including Board Chair Nora Vargas, who introduced the policy.
The letter to Vargas alleges she “could face criminal prosecution and civil liability” for the policy “obstructing” federal immigration law.
In a statement, Vargas said the letter was “designed to intimidate and bully thousands of county elected officials and employees through legal scare tactics.”
“Let me be clear: in voting to affirm our board letter, San Diego County stood firm in its commitment to uphold the dignity and humanity of every resident we serve. As a county, we are proud to follow the law, but we are equally proud to lead with compassion, fairness, and integrity,” Vargas statement continues, adding that the policy was “developed through rigorous legal review and stands in full compliance with federal, state, and local laws.”
“It's really just a red herring to talk about how somehow the county policies are going to thwart the ability of the national immigration agencies to practice immigration enforcement, that's just not the case,” Nietor said. “This should not be used as a witch hunt to try to intimidate people.”
Both Vargas and Martinez have declined multiple interview requests on the policy and its enforcement.
In a statement Monday, Martinez repeated her assertion that she will continue to share information with ICE, adding, "There is a lot of rhetoric in the news and public spaces right now. I will not comment on the rhetoric or speculate on yet-to-be-defined policies of the incoming President or his administration."
“It's being looked at as if we're harboring, you know, illegal criminals here in San Diego County,” said Supervisor Jim Desmond, who was the Board’s sole vote against the policy.
“I think we owe it to the residents that if someone's here illegally committing these highly violent crimes in a lot of cases, they should be deported,” he continued, adding that he had spoken with Martinez and thanked her for her stance of not enforcing the policy.
In an interview with NBC News, Trump’s incoming “border czar” Tom Homan said he was “shocked” by the policy.
“Bottom line is I’m shocked at what San Diego did and bottom line we’re still coming to San Diego and we’re going to do our job,” Homan said. “Look, it’s more difficult but we’re still doing it.”
“I'm glad he heard about it,” Desmond said. “I'm glad that they're coming in and doing their jobs and upholding our laws.”
“Unfortunately, this will probably be drug out in court in some way or fashion, costing the taxpayers even more money,” Desmond continued.
On that, Nietor agreed.
“What happens next is, I would imagine that one side or the other is going to start filing lawsuits because if the sheriff's department continues to violate county policy or continues to violate state law as it has been interpreted, I imagine that some organizations and some individuals are going to ask the courts to resolve this issue,” Nietor said.
He added that as Trump prepares to take office on a platform of unspecified mass deportations, advocates will be watching closely to ensure any action taken remains within the bounds of the U.S. Constitution.
“Just because there are people in these positions of authority, it does not give them carte blanche to do whatever they want with their authority,” he said.
