Thomas Homan, acting director of Immigration and Customs Enforcement, appeared on Fox News earlier this month to threaten prosecution of sanctuary cities, which would include the city of Austin.
In the interview, Homan said he was determined to punish cities that harbor illegal aliens and do not allow federal ICE agents access to local jails, calling it a violation of the Alien Smuggling Statute. Homan called for the Department of Justice to file charges against sanctuary cities and pull funding, as well as to hold local politicians “personally accountable” for policies that hinder immigration agents.
“This isn’t the America I grew up in,” Homan said. “We gotta take these (sanctuary cities) to court, and we gotta start charging some of these politicians with crimes.”
Homan’s remarks prompted immediate backlash from Austin Mayor Steve Adler.
“Threatening to jail political opponents, especially for laws they aren’t breaking, is not the America I grew up in,” Adler said in a statement. “Austin is the safest big city in Texas, and we follow the law. I will oppose anti-immigrant policies, regardless of the personal consequences, because spreading fear and making threats makes us all less safe.”
While Homan’s interview sparked some controversy, Austin experts said there is no constitutional basis to his threats.
Homan’s claim that refusing ICE agents’ access to jails violates the Alien Smuggling Statute is false, said Denise Gilman, law professor and director of UT’s Immigration Clinic.
“I’ve never even heard that theory mentioned before, because it’s really just pulling out of thin air,” Gilman said. “And it’s deeply troubling to see a federal, high-level law enforcement officer threatening to prosecute for a crime without any legal basis.”
Bob Libal, executive director of the nonprofit organization Grassroots Leadership, said the term “sanctuary city” has no legal definition but can refer to hundreds of counties and municipalities that restrict interaction between local law enforcement and immigration officials to some degree.
“Some communities have said the local police are not to act as immigration enforcement agents, (and) they’re not going to ask people about their immigration status,” Libal said. “Some have said, ‘We’re not going to share any information beyond what the federal law says we have to with immigration enforcement officials.’ Others have said, ‘We’re not gonna honor constitutionally dubious immigration detainers in the jail.’”
Gilman said if the mayor of Austin decided to prevent local police from turning over individuals who were arrested on regular charges to ICE, the federal government could bring a lawsuit against the city, and the case would be handled in the courts, not as a criminal prosecution.
“That’s the first measure of accountability, but that’s very different from threatening criminal prosecution,” Gilman said. “In a democracy, the federal government isn’t going around arresting people that they disagree with.”