An Special Response Team from U.S. Immigration and Customs Enforcement deporting a Mexican fugitive. Courtesy ICE

The assertion that the alleged murderer, Francisco López Sánchez, had committed “seven felonies” is misleading at best. Immigration and Customs Enforcement, better known as ICE, describes him as a “repeat felon” because he committed offenses that count as “aggravated felonies” for the purposes of U.S. immigration law, a category which includes misdemeanors under criminal law.

The only actual felony that the government has made public in this case is for “re-entry” — a combination of unauthorized entries to the United States after convictions for “aggravated felonies,” at least four of which were drug offenses. In other words, López Sánchez appears to have accumulated misdemeanors that added up to a felony. He served less than four years in federal prison. If he had actually been convicted of violent felonies, combined with the re-entries, he would very likely remain in prison. Federal sentencing guidelines dictate 10-20 years in such cases, and ICE must wait until the sentence is complete before pursuing removal.

Equally specious is the government’s claim that because ICE issued a “detainer” against Sánchez and because he had an order of removal against him that he would have been detained and deported right away. Immigration officials routinely issue detainers against individuals whom they do not detain, and immigration judges routinely issue removal orders that are not executed.

Why? Because our immigration courts are completely overwhelmed. According to the current Justice Department roster, there are 249 immigration judges in the United States, and they face a backlog of more than 420,000 cases. This translates into a five-year wait for a hearing in many districts, and serious pressure to prioritize cases for prosecution.

In the case at hand, there was no indication that López Sánchez had committed acts of violence, and thus he was a low priority for immigration enforcement. It’s a similar story in San Francisco. He was arrested this time for skipping out on a warrant issued 20 years ago on a marijuana charge, and he had no pending warrants in state or federal courts.

Here’s a guy with multiple drug possession charges, who moves around a lot, and has dodged law enforcement for years. When he was arrested twenty minutes after the shooting, he initially told police he was “shooting at sea lions,” and later claimed the gun went off by accident after he had taken a bunch of sleeping pills. He made little attempt to flee. He had no connection to the victim and there was no apparent motive. The gun turned out to belong to a Bureau of Land Management officer who reported it stolen after leaving it in the front of his vehicle. He sounds a lot like an addict with mental health issues, who found or stole an improperly secured gun.

This tragedy had nothing to do with immigration, and immigration enforcement cannot prevent it from happening again. Have we not seen tragedies in towns and cities across the U.S. when addicts or mentally ill persons who have slipped through the cracks gain access to guns? Would it be any less of a tragedy if he had killed someone in Tijuana?

As for the argument that individuals who are willing to break immigration law are somehow more likely to commit crimes, there’s simply no evidence. Indeed, a variety of academic and policy studies have shown that the rate of criminality among recent immigrants to the United States is significantly lower than for the population as whole, and this finding holds across national origin and legal statuse. It’s no wonder — most of these people spend most of their time working.

This is why cities decide not to actively enforce federal immigration law. They know that the vast majority of immigrants in their communities obey the law, and that a majority of undocumented individuals are part of mixed-status families (with a mix of citizens, legal residents, and undocumented in the same households). They want people in their communities to call the police when they witness or experience a crime, without worrying that they are going to get a neighbor or family member deported. It’s simply good policing. This is the core of what it means to be a sanctuary city these days.

During the religious wars and pogroms in Europe, cities and towns declared themselves sanctuaries to protect persecuted minorities, mostly Protestants and Jews. In the 1980s, the Sanctuary Movement revived this concept to protect Central American refugees from deportation to war zones. Churches, synagogues, lay organizations and municipalities declared themselves sanctuaries as an act of civil disobedience, directed equally at U.S. immigration officials for ignoring the evidence of persecution in tens of thousands of Salvadoran and Guatemalan asylum cases, and the Reagan Administration for supporting the military dictatorships responsible for much of the underlying persecution.

But, the police chiefs, mayors and city councils that support sanctuary right now have more basic concerns. They are trying to govern effectively in a situation in which significant sub-populations in their jurisdictions live in the shadows, a situation for which Congress has failed to develop a humane and sustainable alternative for decades. For most working-class immigrants in their cities, there are no visas available, there’s no line to get to the back of, and any kind of documented status would be an improvement.

Despite the panicked political rhetoric, the moment is ripe for reform. Undocumented immigration to the United States has been declining for fifteen years and fallen to levels we haven’t experienced since the early 1970s. This is particularly true for Mexicans, who have borne the brunt of the current vitriol. Last year was the first year in the history of the land border that Mexican nationals have not comprised a majority of apprehensions, and more Mexicans have left the U.S. since 2010 than arrived anew.

Instead of parading a handful of victims’ families before Congress, insulting our second largest trading partner, and competing over a bunch of harsh new measures that are totally irrelevant to the crimes in question, Congress should get to work on substantive immigration reform.

Lawmakers might start by expanding the adjudicatory system to address the crushing backlog. This would be much less of an ideological hot button than guest worker programs or paths to citizenship, and it would effectively reduce the executive discretion over immigration about which critics have howled.

Of course, timely, fair, and transparent hearings would also undermine many of the myths and stereotypes about immigrants that have vaulted the most bombastic critics into the national spotlight. Their stories would likely remind us of something President Obama likes to say: “Before we were us, we were them.”

Everard Meade, PhD, is director of the Trans-Border Institute at the University of San Diego. Enrique Morones is executive director of Border Angels.

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