January 28, 2018

DOJ Threatens ‘Sanctuary’ Cities with Subpoenas

President Donald Trump and Attorney General Jeff Sessions both insist that sanctuary cities contribute to “lawlessness” and crime. (Evan Vucci/AP)

The Trump administration is escalating its fight against cities, counties and states that don’t completely cooperate with federal immigration enforcement.

By Alan Neuhauser / 01.22.2018

Nearly two-dozen “sanctuary” jurisdictions – cities, counties and states that refuse to fully cooperate with federal immigration enforcement – are facing the prospect of a federal subpoena aimed at looking into their practices of sharing information about people in the country illegally.

The Justice Department on Wednesday sent letters to the jurisdictions, including the states of California and Oregon, demanding that they produce documents to prove that policies they have implemented to shield certain immigrants who are in the country illegally do not run afoul of federal immigration laws.

Jurisdictions that do not fully comply could be subpoenaed, a senior Justice Department official said, and President Donald Trump and Attorney General Jeff Sessions have threatened to withhold or rescind lucrative law enforcement grants – particularly Byrne Justice Assistance Grants – for cities, counties and states that fail to certify their compliance with federal immigration enforcement laws. Congress allocated $376 million for the Byrne JAG program in fiscal 2016.

“Our goal here is to ensure compliance with applicable federal law,” the senior official said.

The letters represent an escalation in the administration’s ongoing fight against sanctuary jurisdictions, which has been repeatedly thwarted in federal court. Byrne JAG awards expected to be disbursed at the end of 2017 have yet to be issued to any grant recipient as a result of the court battles, the senior official said.

Hundreds of cities, counties and states have instituted various policies that prohibit officers from asking people about their immigration status, restrict police from complying with federal requests to continue holding someone who is in the country illegally beyond his or her schedule release from jail, or bar officers from notifying federal authorities of a person’s impending release.

These localities contend that such policies protect community trust between immigrants and the police, ensuring that crimes get reported and helping keep residents safe.

Trump and Sessions, by contrast, have vigorously contended that such a view contributes to cultures of “lawlessness” and crime.

“I continue to urge all jurisdictions under review to reconsider policies that place the safety of their communities and their residents at risk,” Sessions said in a statement. “Protecting criminal aliens from federal immigration authorities defies common sense and undermines the rule of law. We have seen too many examples of the threat to public safety represented by jurisdictions that actively thwart the federal government’s immigration enforcement – enough is enough.”

At issue is federal statute 8 USC 1373, which bars local, county and state governments from instituting any policy that would restrict officials from sharing someone’s immigration status with the federal government.

Much of that type of information-sharing already happens automatically and beyond the reach of local jurisdictions: When people are arrested and fingerprinted, those prints are sent to an FBI database that then shares them with Immigration and Customs Enforcement, which can check the fingerprints against internal records to verify someone’s immigration status.

Certain immigrants who are fingerprinted, however, may not have a corresponding match in ICE’s records. In such situations, immigration authorities generally then ask police for more information about the person in jail, which local policies may prohibit officers from doing. A senior Justice Department official on Wednesday said that such rules may run afoul of 1373.

“There are foreign-born no-matches who are individuals who indicate that they are foreign-born but they have not had encounters with the federal government in the past … so there are no biometric matches in the department’s databases with which that information can be matched up to,” the official said.

Local laws or policies that bar police from notifying authorities about someone’s upcoming release from jail are also problematic, the official said.

Sanctuary jurisdictions, immigration advocates and several federal courts have rejected that view. Section 1373, they contend, is narrowly drawn and applies only to the sharing of people’s immigration status – not their impending release date. And while it also restricts localities from instituting any policy that would prohibit communication with federal authorities, it does not appear on its face to compel local police to collect certain types of information – if someone’s fingerprints don’t generate a match with ICE, federal authorities can’t force local police to then press the person for more information.

Localities contend that they may be in full compliance with Section 1373 as required, in other words, even while having such restrictions in place.

“That is not our position,” the Justice Department senior official said.

Federal judges in San Francisco and Chicago last year largely blocked the Justice Department from enforcing a section of an executive order Trump signed days after taking office in January that would have blocked sanctuary jurisdictions from receiving federal funds. Similar litigation is playing out in federal court in Philadelphia. The Justice Department appealed the rulings, and an appeals panel heard arguments in the Chicago case Friday.

The Chicago court blocked the Justice Department from tying new conditions to Byrne JAG funding not already approved by Congress. As a result of that ruling, the Justice Department has not issued any Byrne JAG grants for 2017.

“Under the current situation, between the San Francisco and Chicago decisions, no judge has restricted our ability to enforce compliance with 8 USC 1373 as a prerequisite to obtaining funds or to the receipt of funds, and of course assessing a recipient’s ongoing compliance,” the Justice Department senior official said.

Originally published by U.S. News & World Report with permission.