BL2017-739 – “Nashville Together” Family Friendly City Bill

Metro Council - District 23

Metropolitan Government of Nashville and Davidson County

June 26,2017


Mina Johnson

District 23 Council Member Mina Johnson

Metro Council Office

One Public Square

Suite 204

P.O. Box 196300

Nashville, TN 37219

Phone: 615-429-7857

Email Mina Johnson

BL2017-739 – “Nashville Together” Family Friendly City Bill

Over the past few days, I have been contacted by some of my constituents via phone calls and e-mails about Ordinance BL2017-739, the bill portrayed as “Sanctuary city” or “Sanctuary city like policy.”

I would like to call it “Nashville Together” or “Family Friendly City Bill.” This ordinance will give immigrant families peace of mind that their families will not be separated so long as they continue to live their lives abiding by the law. This ordinance will make Nashville a truly warm and welcoming city and a safe place for all to live.

Currently, there is an estimated 33,000 undocumented people living in Nashville. They are feeling unsafe and fearful due to a recent change in the Federal immigration policy. Some undocumented immigrant parents are afraid that today could be the last day to see their US born children every time they leave their home. Some are not taking their children to school or getting them vaccinated, and many others are too afraid to call the police when they are the victim of a crime or witness a crime. This situation makes our city less safe.

Many asked why don’t those undocumented people get in line to obtain legal status? The fact is, there is no line for them to get in. They would get in the line in a heartbeat and apply for legal status if the immigration system offered such option. As we know, our immigration system is outdated and broken. However, only the Congress and the Federal Government can fix it. Until the Federal Government acts to reform immigration laws, what we can do is to ensure Nashville is truly a warm and welcoming city for all families.

While I was responding to phone calls and e-mails, I realized there is quite a bit of misinformation and misconception about Ordinance BL2017-739 and “sanctuary city” and “sanctuary jurisdictions.” I would like to offer some clarification by sharing the publications prepared by Immigration Legal Resource Center, and Tennessee Immigrants & Refugee Rights Coalition, and the response to CL Vercher's questions by MNPD Chief Anderson.

Does this ordinance violate Federal law or put Federal funding at risk? No. BL2017-739 will comply with Federal law. The ordinance only limits the city's participation in voluntary programs and additional collaboration with Immigration and Customs Enforcement (ICE) not required by Federal law.

It is true that the Trump administration has indicated that they oppose "sanctuary jurisdictions" and will seek to withhold funding from such cities/counties. Recently, however, Attorney General Jeff Sessions issued a memo to all department grant-making components that defined "sanctuary jurisdictions" and makes two critical clarifications:

1) According to the DoJ definition, only jurisdictions that willfully limit mandatory information sharing to ICE (violating 8 U.S.C. 1373) will be considered "sanctuary" jurisdictions. BL2017-739 does not violate this Federal law and would not make Nashville a "sanctuary" jurisdiction.

8 USC § 1373(a) is a Federal statute that prohibits local and state governments and agencies from enacting laws or policies that limit communication with Immigration & Customs Enforcement (ICE) or Customs and Border Protection (CBP) about “information regarding the immigration or citizenship status” of individuals. The statute prohibits such policies, but does not contain any affirmative requirement for specific action.

2) The AG conceded that the Federal government cannot threaten or punish cities that limit their voluntary cooperation with Federal immigration enforcement by withholding any and all Federal grants. As the General Assembly is aware, the Federal government cannot commandeer local resources for Federal use and therefore cannot require that local governments expend resources on Federal immigration enforcement. What the memo does indicate is that the Federal government may seek to reward cities that help them carry out deportations by creating future grants for jurisdictions that go above and beyond what the law requires.

Does this ordinance violate state law? No. The Tennessee General Assembly passed a law in 2009 that prohibits local government entities and officials from adopting any ordinance or written policy that "expressly prohibits a local governmental entity, official, or employee from complying with applicable Federal law pertaining to persons that reside within the state illegally." BL2017-739 fully complies with Federal law and therefore does not violate state law.

Can the Federal government require local police or jails to help with immigration enforcement or comply with immigration detainers? No. The Tenth Amendment precludes the Federal government from coercing state or local governments to use their resources to enforce Federal laws or regulations, like immigration. Immigration holds and requests for notice of release dates are not mandatory, because forcing states or localities to assist in immigration enforcement, such as complying with ICE detainer requests, would violate the separation of powers between state and Federal governments. Consequently, 8 USC § 1373 does not and could not require such assistance.

Removal proceedings to deport noncitizens from the U.S. is a civil – not a criminal – process. As such, local law enforcement officers do not have authority to arrest or detain noncitizens for civil violations of immigration law or hold them post-release pursuant to an ICE detainer. There is no violation of Federal law in declining ICE detainers or refusing to provide immigration officials with release date information. Many Federal courts have found local detention pursuant to an ICE detainer to be illegal.

Does this ordinance undermine public safety? No. The ordinance is designed to promote public safety. Right now, immigrant communities do not see a distinction between local law enforcement and Federal immigration enforcement agents. As a result, immigrant residents hesitate to call the police to report crimes when they are victims or witnesses. When people don't trust the police, and don't call to report crimes, our whole community becomes less safe.

We have a criminal justice system that is designed to enforce criminal law and promote public safety. All Tennessee residents, regardless of immigration status, are subject to punishment for violating criminal law. BL2017-739 aims to prioritize limited taxpayer resources and promote public safety by not diverting critical law enforcement resources towards civil immigration violations instead of pursuing public safety threats like domestic violence or the opioid crisis.

Does this ordinance allow undocumented immigrants access to public benefits that they were previously ineligible for? No. Public benefits have strict immigrant eligibility requirements as determined by state and Federal law. BL2017-739 does not prohibit inquiring about immigration status when mandated by state or Federal law. If BL2017-739 becomes law, immigrants in Nashville seeking access to public benefits like TennCare will still be required to show proof of citizenship or immigration status to demonstrate eligibility.

The ordinance will clarify for public employees and reassure immigrant residents that government agencies will not otherwise inquire about immigration status when not required by Federal law to deliver a service.

For example, the Public Health Department will be able to reassure immigrant families that if they bring their child in for a vaccination they will not be required to disclose their immigration status. Both state and Federal law exempt immunizations from immigration eligibility requirements because of the importance of ensuring all children have proper vaccinations. Without an ordinance like BL2017-739 in place, employees of the health department have reported fewer immigrant families showing up to vaccinate their children, making our whole community less safe. Similarly, the police or fire department will be able to reassure families that when calling to report a crime or emergency, they will not be asked about their immigration status.

Most of social safety net services and public benefits programs have immigrant eligibility requirements as outlined in state and Federal law. Public employees in Nashville will still be required to verify immigration status when determining eligibility for these programs and services.

What's MNPD's policy as it relates to interactions with immigrants? Immigration status is not a relevant consideration in most interactions with immigrants.  The MNPD has no reason to inquire or otherwise consider immigration status.  However, during arrest situations, "place of birth" is a field on the report about which an officer may inquire.  This inquiry, about "place of birth"- NOT immigration status, is simply to aid in verification of a person's identity as there are many common names.  Verification of identification is most often the significant consideration in determining eligibility for a citation in lieu of continued custody.  This inquiry about "place of birth" is as relevant for other states and cities as it is for countries.

Is it the same as with anyone else given a person's skin color can't solely determine birth origin? Yes.  Our policy is to treat all persons, regardless of skin color or immigrant status, equally.

Do MNPD officers ask citizenship status questions? Citizenship status is irrelevant to MNPD.

How does this ordinance impact enforcement of law? Considering that immigration status is irrelevant to the MNPD in carrying out our duties, there is no foreseeable impact to most of the MNPD interactions-either enforcement activities or in the investigation of crimes, or providing services to victims.

How does MNPD cooperate with ICE? Realizing that ICE is an acronym for a department which includes Customs enforcement and their role includes investigating or enforcing the attempted importation of controlled substances and counterfeit goods, and these offenses are also a violation of state law, the MNPD occasionally cooperates or assists US Customs and Postal Inspectors with these offenses.  Immigration enforcement remains solely a function of Federal law enforcement and the MNPD has no authority to investigate or enforce immigration laws.  The MNPD expects to have no role in that activity.

In your professional opinion and expertise, do you see this ordinance as potentially jeopardizing or straining relationships with law enforcement and Federal agencies like FBI? Considering that immigration status is not and has not been a relevant issue for the MNPD to inquire about, investigate or otherwise a consideration in our activities, I would expect no change in ongoing relationships with local or federal partnerships.

As always, I welcome your input. Please feel free to call me or e-mail me with any suggestions or questions.