As a way to discourage jurisdictions from adopting sanctuary policies and practices, the Department of Justice (DOJ) has proposed penalizing states and localities by withholding Byrne Justice Assistance Grant (Byrne JAG) funds from jurisdictions that cannot meet certain conditions. DOJ is seeking to accomplish this in two ways: requiring compliance with current federal law, and adding grant conditions.
Compliance with Current Federal Law (8 U.S.C. Section 1373)
The Bureau of Justice Assistance (BJA) is requiring states and localities to certify compliance with 8 U.S.C. Section 1373 as part of their Byrne JAG application. Section 1373 prohibits jurisdictions from adopting policies or practices that impede the sharing of information with Immigration and Customs Enforcement (ICE) about an individual’s immigration status. Section 1373 does not, however, require a jurisdiction to: proactively inquire about a person’s immigration status; share an individual’s criminal history record with ICE; notify ICE of an offender’s date of release from incarceration; or, comply with an ICE detainer request (a request to hold an individual of interest until ICE can take the individual into federal custody).
Starting in the last year of the Obama Administration, states and localities were encouraged to submit information with their FY16 Byrne JAG application that pointed to compliance with Section 1373. This submission was required, however, from the 10 jurisdictions named in a DOJ Inspector General report as possibly engaging in sanctuary practices.
Beginning with the FY17 grants, the Trump Administration is requiring all Byrne JAG applicants to certify compliance with Section 1373 before they can accept and draw down their awards. State Administering Agencies (SAAs) are required to submit the “Certifications and Assurances by the Chief Executive of the Applicant Government” form signed by the governor, which accepts the “State or Local Government: FY 2017 Certification of Compliance with 8 U.S.C. Section 1373” form signed by the chief legal officer of the state (typically the attorney general).
Grant Conditions Added
The Trump Administration has added two new conditions to the Byrne JAG grants, beginning with the FY17 awards. These conditions would be accepted by the individual accepting the award on behalf of the state, typically the SAA.
The new conditions are meant to compel jurisdictions to provide ICE with access to prisons and jails and to offer 48 hours’ notice before any individual of interest to ICE is released. Page 32 of the FY 2017 State Solicitation reads in part
“Individual FY 2017 Byrne JAG awards will include two new express conditions that, with respect to the “program or activity” that would be funded by the FY 2017 award, are designed to ensure that States and units of local government that receive funds from the FY 2017 Byrne JAG award: (1) permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States; and (2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act.
Compliance with the requirements of the two foregoing new award conditions will be an authorized and priority purpose of the award. The reasonable costs (to the extent not reimbursed under any other federal program) of developing and putting into place statutes, rules, regulations, policies, or practices as required by these conditions, and to honor any duly authorized request from DHS that is encompassed by these conditions, will be allowable costs under the award.”
Although the Administration has not yet provided specific detail about what, exactly, would satisfy compliance with these new conditions, DOJ issued a press release notifying jurisdictions that in order to be selected for the Department’s Public Safety Partnership (PSP) program, local jurisdictions must answer certain questions, which might give states an indication of what policies and practices might fulfill the new conditions:
- Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that U.S. Department of Homeland Security (DHS) personnel have access to any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States.
- Does your jurisdiction have a statute, rule, regulation, policy, or practice that is designed to ensure that your correctional and detention facilities provide at least 48 hours advance notice, where possible, to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien?
As with any grant condition, SAAs will be required to ask potential subgrantees to provide certification of compliance with Section 1373 by the locality’s chief legal officer, as well as commit to the two new conditions when accepting an award. However, BJA is not expected to require SAAs to independently verify that jails are granting access to ICE and/or notifying ICE 48 hours before a scheduled release as part of its grant monitoring responsibilities.
The constitutionality of the two new conditions is at issue in a lawsuit brought by the City of Chicago (City v. Sessions). The suit argued, in part, that the Department cannot condition a grant to require a policy or practice not already existing in federal law. To the extent that federal law does not currently require states and localities to provide ICE access to jails and prisons or notice of scheduled releases, Chicago argued that DOJ cannot require such actions as a condition of receiving a federal grant.
In his ruling on September 15, U.S. District Judge Harry Leinenweber temporarily halted imposition of the two new conditions. The Department is considering how to pause review of compliance with the new conditions until all legal action is completed.
It is important to note that Judge Leinenweber’s ruling addresses only the two new proposed conditions, and not the requirement that states and localities certify compliance with 8 U.S.C. Section 1373. Governors and attorneys general will still have to certify compliance with Section 1373 before grantees can draw down the awards.
Further, a federal judge had ruled that provisions of a new Texas law, which sought to penalize sanctuary cities, are unconstitutional. The law, SB4, mandates statewide cooperation with federal immigration laws and requires cities to comply with ICE detainers. Failure to do so carries the possibility of prison time and substantial fees. On September 25, a federal appeals court ruled, however, that Texas can require law enforcement to honor federal immigration requests to detain people in local jails for possible deportation “according to existing ICE detainer practice and law.”
Some Members of Congress are seeking to define and address the issue in federal law; however none of the proposed bills in their current form are likely to pass both chambers. Senator John Cornyn (R-TX) has introduced a bill addressing a broad array of border and immigration issues. The bill, S. 1757, includes language introduced last Congress by Senator Pat Toomey (R-PA) that would seek to discourage sanctuary policies by mandating the sharing of certain immigration information and by requiring localities to comply with ICE detainer requests. The bill would withhold certain public works, economic development and community block grants from non-compliant jurisdictions. It would not penalize the Byrne JAG grants.
In June, the House passed the No Sanctuary for Criminals Act by a nearly party-line vote of 228-195. The bill, H.R. 3003, would preempt the authority of state and local governments to adopt sanctuary policies. It would broaden 8 U.S.C Section 1373 to include policies that prohibit or restrict law enforcement from asking for an individual’s immigration status, restrict officers from notifying the federal government of the presence of individuals encountered, and restrict compliance with federal requests for such information. The bill would obligate jurisdictions to comply with ICE detainer requests, requiring them to hold an individual for up to 96 hours without a judicial determination of probable cause. It would also create a private right of action against local officials who declined detainer requests for individuals who later committed felonies.
Non-compliant jurisdictions would be penalized “any of the funds that would otherwise be allocated to the State or political subdivision” for the Byrne JAG, COPS Hiring, and “any other grant administered by the Department of Justice or the Department of Homeland Security that is substantially related to law enforcement, terrorism, national security, immigration, or naturalization.”