Gubernatorial candidate Phil Lyman has focused recent campaign messaging on Utah’s disputed status as a “sanctuary state.”

The state lawmaker, who is running in the Republican primary against Gov. Spencer Cox, argued Utah is effectively a sanctuary state because U.S. Immigration and Customs Enforcement (ICE) officers are unable to hold migrants who break the law after entering the country illegally in county jails for extended periods of time.

“It’s a well deserved indictment because Utah is being complicit with the federal government standards,” Lyman told the Deseret News. “Rather than arresting people and detaining people in Utah who break Utah laws, we’re letting them go because we can’t detain them under the federal standards.”

This claim was first widely reported in October when a leaked memo from ICE’s Salt Lake City Field Office took the unusual step of designating Utah as a sanctuary state. The memo cited the release of 67% of ICE detainees back into Utah communities during Fiscal Year 2023 because of county sheriffs’ “non-detention policies.”

Riverton Mayor and U.S. Senate candidate Trent Staggs received criticism for promoting the memo which was quickly retracted after state law enforcement and elected officials pointed out its claims were “misleading” and obscured ICE’s responsibility to find holding centers for detained immigrants.

Gov. Spencer Cox has categorically rejected the label.

“Utah is not a sanctuary state, it has never been a sanctuary state, it will never be a sanctuary state,” Cox said during a virtual town hall in March. “And anyone who tells you otherwise ... is lying to you because they want to use fear and divisiveness to try to gain power.”

Is Utah a sanctuary state?

Utah continues to be classified as a sanctuary state by the Center for Immigration Studies. The “pro-immigrant, low-immigration” think tank cites the absence of ICE detention centers in the state and Utah’s immigrant-friendly policies, like driving privilege cards, child medical insurance, in-state college tuition and occupational licensing for undocumented migrants, as justification for the designation.

But being a sanctuary state or sanctuary city has traditionally meant having an official policy of limiting “cooperation with ICE enforcement, especially in relation to the criminal justice system,” said University of Nevada Las Vegas professor Michael Kagan, one of the nation’s leading scholars on immigration law.

“Utah would never be thought of as a sanctuary state,” Kagan said.

Utah code explicitly requires state law enforcement to work with ICE officers when apprehending migrants who break the law after entering the country illegally.

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The now-retracted ICE memo describes “an operational problem that ICE is having in Utah” which does not meet the qualifications of a sanctuary state, Kagan said. He called the move a “bizarre” attempt “by ICE to redefine what that label means.”

The memo, written on May 31 by Salt Lake City Field Office Director Michael Bernacke, came after multiple Utah counties terminated contracts with the federal government that allowed ICE to pay for detainees to be held in county jails that met ICE standards.

Utah County Sheriff and president of the Utah Sheriffs’ Association Mike Smith said it became impossible for county sheriff departments to comply with new Biden administration policies that required totally different, and often “ridiculous,” treatment of civil ICE detainees compared to regular criminal inmates.

Salt Lake City police and ICE agents arrest drug dealers and work to process any who may be in the country illegally on Nov. 8, 2007. | Scott G. Winterton

The 700-page-long list of ICE standards included having separate entrances, as well as a specific type of hair cut and hand lotion, that must be used for ICE detainees, Smith said. If ICE-contracted jails failed to comply with these standards, they were made vulnerable to lawsuits from national “watchdog groups,” something that happened to Utah County law enforcement on at least one occasion, Smith said.

No county in Utah currently has an agreement with ICE to hold detainees for this reason, Smith said. But this does not mean violent criminals who are noncitizens can be let loose by ICE.

Migrants in the country illegally who are arrested for criminal charges are held in Utah jails and processed through the Utah justice system like any other offender, Smith said.

“I have people in my jail right now, who are illegal immigrants who have broken state laws that are in jail on those violations,” he said. “Those criminal charges go through our state courts just like they would for anybody.”

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Following their time in the criminal justice system, migrants who have broken the law are usually turned over to, or “arrested” by, ICE, Smith and Kagan explained, and then should be kept in ICE detention facilities for civil proceedings including deportation.

Even if there are no ICE detention facilities in the state, that doesn’t mean ICE is forced to release detainees, they said.

“ICE has an extremely large budget that was just actually increased to basically pay for detention space all over the country,” Kagan said. “Once someone is in ICE custody, ICE can move them across state boundaries, they do that all the time, that’s perfectly regular.”

There are three ICE detention facilities in southern Nevada that frequently house migrants transported by ICE from Utah, Kagan said. So, the reasoning behind ICE’s memo in Utah is a mystery to him. As it is for Smith.

Should Utah do more about migrants in the country illegally?

“We’ve hit a brick wall with ICE,” Smith said. “They’re trying to shift the blame to say, ‘It’s the sheriff’s fault.’ And it never has been our job. We don’t have any statutory obligation to do their work for them, yet they write this erroneous and inflammatory memo stating that we do.”

On multiple occasions, Utah law enforcement officers have met with ICE to try and fix their detention-space problem, Smith said. Utah sheriffs have even proposed that ICE rent portions of a Weber County facility and a vacant Daggett County facility for ICE detentions.

“We’ve told them that multiple times and it falls on deaf ears,” Smith said.

Lyman recognizes that federal government policies have made it difficult to rely on ICE to enforce immigration law. But Utah leaders shouldn’t use bureaucratic dysfunction as an excuse not to address the problem, Lyman said.

Salt Lake City police and ICE agents arrest drug dealers and work to process any who may be in the country illegally on Nov. 8, 2007. | Scott G. Winterton

“It’s an executive decision about policy,” he said.

Lyman said Utah should take a more active stance toward immigration law enforcement, detaining and deporting migrants independently of ICE like Texas is attempting to do.

But the new Texas law that permits local police to charge — and state judges to deport — migrants suspected of illegally crossing the border is currently being held up in federal court, Kagan explained.

“If the Supreme Court does not change the law, then that kind of effort by Utah would be unconstitutional because immigration enforcement is an exclusively federal domain,” Kagan said. “So states can’t step in under current Supreme Court case law to start arresting and deporting people.”