Examining Sanctuary Status In Hayward
In Which: ICE raids in Hayward are a false alarm, Hayward sanctuary policies are examined, and How we can keep each other safe.
ICE False Alarm and Sanctuary Status
Last Friday Instagram and social media messages alleged that Immigrations and Customs Enforcement (ICE) was conducting some an operation in Hayward. They posted images of multiple unmarked white vans on Gading Road with what appeared to be some kind of law enforcement.
There were now-confirmed ICE raids in Bakersfield, Fresno, and Sacramento that same day, giving credence to a mass deportation operation across California. This troubled many, myself included, for several reasons: many community members are immigrants, the Trump inauguration is near, and Hayward was declared a Sanctuary City some time ago.
After community members relayed these allegations to a City Councilmember who then contacted the Chief of Police, HPD came forward with a statement that it was not ICE. It was the California Department of Corrections and Rehabilitation (CDCR) doing a parole enforcement operation based on “illegal drug activity.” No further details were offered at the time.
Leaving aside the fact that unmarked vans from any agency sweeping into a community unannounced and whisking residents away is alarming, the social media campaign highlighting Hayward’s Sanctuary status begged the question: What does that even mean?
So tonight, let’s look at Hayward’s Sanctuary City ordinance: what that term means, what is actually covered, and why our immigrant neighbors could still be at risk.
What Is “Sanctuary Status”?
There isn’t a definition for “sanctuary status.” The American Immigration Council states that “no legal or standard definition of the term exists.” They generally align with one or more policies limiting cooperation with Federal immigration operations, but those limits can vary from agency to agency.
For Hayward, there are sanctuary policies in place for the Hayward Unified School District (HUSD) and the City of Hayward. BART considered designating itself a Sanctuary Transit System in 2017, but it’s unclear whether or not it was approved. The idea behind these policies is that immigrant residents will be less likely to talk to members of the agency—police, city staff, school staff, etc.—if there is a possibility that they could be deported for doing so.
And while the primary group targeted by these policies have immigrated illegally, the threat of deportation is real for a number of immigrant groups—legal and illegal—whose presence in the US is dependent on the good graces of the government. This includes not only DACA recipients, but also refugees, migrant workers, and parents/family of citizens. It also affects more than just the Latine community, as the largest group of DACA recipients at CSUEB are Asian, potentially including Korea, Pakistan, Indonesia, and Hong Kong.
What Do The Local Policies Cover?
With several overlapping policies, it’s important to go through them in detail to figure out what is and isn’t allowed by each agency.
City of Hayward
The actual resolution declaring the City of Hayward a Sanctuary City—Resolution 17-069—lays out some generalities of how the City will operate in regards to immigration status. This technically covers HPD, but we’ll get into more details with them below.
The City “shall not collaborate with federal agents solely for the purpose of enforcing federal immigration law and shall not use City resources or personnel to investigate, question, detain, apprehend, and/or register persons based solely on a civil violation of federal immigration law”
The City “shall not take any direct action against any individual based solely on their actual or perceived immigration status, nor shall any induvial be held in local custody solely for a civil immigration hold” unless they’ve been convicted or charged with “certain serious offenses”
The City “will not use any public resources or follow any federal program requiring the registration of individuals on the basis of religious affiliation, race, national or ethnic origin, gender identity, or sexual orientation.”
Some important language to note here is a “civil violation of federal immigration law.” I’m not an immigration lawyer, so I don’t know what exactly qualifies as a civil or criminal violation if immigration law. The important part to note is that there is a difference—it would be allowable under this policy for HPD to take action based on a criminal violation of immigration law.
It’s also important to note that the ordinance allows someone to be held for a civil immigration hold if they’ve been charged—not even necessarily convicted—of “certain serious offenses.” If they’ve been charged, they may be innocent—they haven’t even been tried yet. The “certain serious offenses” seems to mean felonies in a legal sense, but vague language leaves itself open for interpretation.
The aim seems to be reassuring immigrant residents that they won’t be deported unless they break some other kind of law. There seem to be legal loopholes for what those other kind of laws may be, but they shouldn’t arrest you only because of your immigration status.
HUSD Policies
Although I am unable to access the resolution regarding the Sanctuary Schools—Resolution 1617-26—due to it being account-restricted in a Google Doc, a document put together by then-superintendent Matt Wayne highlights the important parts.
ICE will not be permitted on campuses.
ICE and/or any other agencies are restricted access to the school site’s main office and will not be permitted to enter any school sites.
No student records will [be] released to ICE or any other agencies.
With HUSD barring all student records from ICE, that means that they would have no way of getting access to any student or parent immigration information from the school district. It’s also possible that the Family Educational Rights and Privacy Act (FERPA) would prevent most of this information from being shared, so that part may mostly be for reassurance.
However, it’s unclear how this affects HUSD’s relationship with HPD—an agency they called dozens of times in the last year on students—since HPD has a policy explicitly stating that nobody can stop them sharing information with ICE.
Also, while it’s important that HUSD doesn’t allow ICE on campuses, there is nothing stopping ICE from waiting on the street for a student or their parents to exit the campus. A student would have to leave the campus at some point.
HPD Policy
The Hayward Police Department (HPD) has its own set of policies—Policy 415—around how to handle immigration violations. The language in this document is a lot more clear concerning what HPD will and won’t do—for better and for worse.
“Under no circumstances shall a person be detained or arrested by HPD based solely on his or her immigration status, whether known or unknown.”
“An officer’s suspicion about any person’s immigration status shall not be used as a basis to initiate contact, detain, or arrest that person…” and “…will not inquire about a person’s immigration status during arrest procedure” unless it’s relevant to investigating a crime under California law.
“Personnel will not participate in ICE organized sweeps to locate and detain undocumented residents. This does not preclude staff from assisting ICE during critical incidents or emergency requests for assistance. Each level of assistance will be evaluated by the on-scene supervisor”
If someone doesn’t have an identification of some kind—say, perhaps, because they’re in the country illegally and don’t have any— “the officer may take the person into custody on the suspected criminal violation”
“HPD personnel shall not initiate law enforcement actions based solely on observations related to a subject’s immigration status.”
“An officer shall not detain any individual, for any length of time, for a civil violation of federal immigration laws or a related civil warrant” However…
“An officer who has a reasonable suspicion that an individual already lawfully contacted or detained has committed a criminal violation of 8 USC § 1326(a) (unlawful reentry) that may be subject to an enhancement due to a previous conviction of an aggravated felony… may detain the person for a reasonable period of time to contact federal immigration officials” [emphasis added]
“No member of this [department/office] will prohibit, or in any way restrict, any other member from doing any of the following regarding the citizenship or immigration status, lawful or unlawful, of any individual:
(a) Sending information to, or requesting or receiving such information from federal immigration officials
(b) Maintaining such information in [department/office] records
(c) Exchanging such information with any other federal, state, or local government entity”
There are a lot of other details—the document is 12 pages long—but those are the highlights.
Much like the City ordinance, this policy is a mixed bag. Generally speaking, HPD shouldn’t pick anyone up based solely on their immigration status nor actively help ICE in any immigration enforcement raids. However, if you are suspected of committing any other kind of crime, things get more tenuous.
A person can’t be picked up based on their immigration status, but if they are picked up for some other reason—even if they’re later let go with no charges—HPD could learn their immigration status. Then, per policy, they are allowed to share information with ICE (415.8). If an officer just has a reasonable suspicion that they’ve committed a felony and been picked up by ICE, they can contact immigration (415.6).
So while HPD won’t work with ICE on raids, they will share immigration information with ICE. And while they shouldn’t arrest you because of your immigration status, they can reach out to immigration if they so much as suspect that you may have been involved with a felony. And while there is evidence that immigrants have a much lower rate of violent crime than the general population, arrest rates and demographics suggest that immigrants may get arrested at a higher rate, putting them at risk.
An Imperfect System
The incoming Trump Administration has made abundantly clear that they want to deport immigrants—millions of them across the country—and may even use the army to do so. Right now, these imperfect policies are what our City is using to protect our community from being forcibly removed. They are far from perfect and they are not a guarantee of safety—our neighbors are still at risk.
Right now, the legality of these sanctuary policies is solid. According to the Congressional Research Service, there have been multiple attempts to invalidate sanctuary policies as unconstitutional, but they have all been defeated so far. However, given the Supreme Court’s recent rightward lurch, that’s no guarantee for the future.
The Congressional Research Service also points to multiple attempts by Congress to either ban Sanctuary jurisdictions or withhold federal funding from them as punishment. None of those laws passed before, but a lot has happened since 2019 that could allow future laws to pass. Things could change at the federal level—from repealing DACA to making illegal immigration a felony—that could criminalize our neighbors.
We Can Keep Us Safe
There are protections under the 4th Amendment that can keep people from ICE custody, at least temporarily. They are outlined on Red Cards for ease of use and can be printed in a dozen different languages. 4th Amendment rights cover citizens and noncitizens equally and can keep you or someone you care about safe.
In the coming months, there’s a good chance many in our community are going to be scared and in danger. Your neighbors, your friends, and even your loved ones could be at risk and it’s up to us to watch out for each other. Policies alone won’t protect us, but we can protect each other.
Stay safe out there and stay woke.