To discourage jurisdictions from adopting sanctuary policies and practices, the Trump Administration has proposed penalizing states and localities that cannot meet certain conditions. The Department of Justice is seeking to accomplish this in two ways: by enforcing stricter compliance with current federal law and by adding two new grant conditions on Byrne JAG and several other grant programs.
Trump Executive Order
On January 25, 2017, during his first full week in office, President Trump issued an Executive Order (EO) that, among other goals, seeks to discourage counties, cities and states from knowingly and “willfully” giving safe harbor to illegal immigrants, particularly those who have committed crimes of violence.
Section 9 of the EO requires the Attorney General and the Secretary of Homeland Secretary to ensure “in their discretion and to the extent consistent with law” that jurisdictions that “willfully refuse to comply” with federal law “are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes…”. It also requires the Attorney General to “take appropriate enforcement action against any entity that violates [a federal immigration law], or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” The law referenced in the order, 8 U.S.C. 1373, prohibits states and localities from intentionally withholding from Department of Homeland Security (DHS) certain information about an individual’s immigration status. It does not, however, require jurisdictions to take any action to enforce immigration laws or to comply with requests from DHS to hold an illegal immigrant who has been serving time in jail or prison beyond their date of release. It was unclear at the time which grants might be impacted.
Section 8 seeks to “empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.” To do that, the order requires the Secretary to “immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the [Immigration and Naturalization Act].” These agreements, in effect now in some jurisdictions, authorize state and local law enforcement to perform the functions of immigration officers under the direction and the supervision of the Secretary.
Compliance with Federal Law 8 U.S.C. Section 1373
One mechanism the Administration is using for discouraging sanctuary policies is by requiring states and localities to submit a signed certificate of compliance with 8 U.S.C. Section 1373 for all Byrne JAG and several other grant programs.
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 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 draw down their awards. State Administering Agencies (SAAs) are required to a form signed by the governor, which accepts the certification by the state’s chief legal officer (attorney general). Local jurisdictions are also required to submit signed certification forms to the SAA (for subawards) or directly to DOJ (for direct awards). For more information and to download the various forms, click here .
Two New Grant Conditions
Also beginning with the FY17 awards, the Trump Administration added two new special conditions to the Byrne JAG grants. The individual accepting the award on behalf of the state (typically the SAA) or the local government must accept these conditions.
The new conditions are meant to compel jurisdictions to provide ICE with access to prisons and jails and to offer 48 hours’ notice to ICE before the scheduled release of any individual of interest. 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.”
Further, special condition #55 of the FY2017 awards read in part:
- A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given to access any State (or State-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A State statute, or a State rule, -regulation, -policy, or -practice, must be in place that is designed to ensure that, when a State (or State-contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see para. 4.B. of this condition) -- provide the requested notice to DHS.
Special condition #56 is similar and relates to local government obligations:
- A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, -policy, or -practice) must be in place that is designed to ensure that agents of the United States acting under color of federal law in fact are given access a local-government (or local-government-contracted) correctional facility for the purpose of permitting such agents to meet with individuals who are (or are believed by such agents to be) aliens and to inquire as to such individuals' right to be or remain in the United States.
B. A local ordinance, -rule, -regulation, -policy, or -practice (or an applicable State statute, -rule, -regulation, -policy, or -practice) must be in place that is designed to ensure that, when a local-government (or local-government- contracted) correctional facility receives from DHS a formal written request authorized by the Immigration and Nationality Act that seeks advance notice of the scheduled release date and time for a particular alien in such facility, then such facility will honor such request and -- as early as practicable (see "Rules of Construction" incorporated by para. 4.B. of this condition) -- provide the requested notice to DHS.
For each special condition, the Rules of Construction read, in part:
- Nothing in this condition shall be understood to authorize or require any recipient, any subrecipient at any tier, any State or local government, or any other entity or individual to maintain (or detain) any individual in custody beyond the date and time the individual would have been released in the absence of this condition.
Current DHS practice is ordinarily to request advance notice of scheduled release "as early as practicable (at least 48 hours, if possible)." (See DHS Form I-247A (3/17)). In the event that (e.g., in light of the date DHS made such request) the scheduled release date and time for an alien are such as not to permit the advance notice that DHS has requested, it shall not be a violation of this condition to provide only as much advance notice as practicable.
NOTE: Current DHS practice is to use one form (DHS Form I-247A (3/17)) for two distinct purposes -- to request advance notice of scheduled release, and to request that an individual be detained for up to 48 hours AFTER the scheduled release. This condition imposes NO requirements as to such DHS requests for detention.
Compliance with the new conditions are to be verified as part of the post-award monitoring process. 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. 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 and of 8 U.S.C. Section 1373 are at issue in lawsuits brought by several jurisdictions. Two of those are described below.
The constitutionality of President Trump’s Executive Order is the subject of a lawsuit brought by the City and County of San Francisco and the County of Santa Clara, California. In his April 2017 ruling, U.S. District Court Judge William Orrick questioned the constitutionality of the Executive Order and issued a temporary nationwide injunction on the penalizing of grant funds over sanctuary policies. Orrick’s final ruling, in November 2017, concluded the Executive Order is unconstitutional and permanently blocked it from taking effect. The Administration appealed. On August 1, 2018, the U.S. Circuit Court of Appeals for the 9thCircuit agreed with the underlying premise but not with the nationwide scope of the injunction. The 2-to-1 ruling found that that the Administration “may not refuse to disperse the federal grants in question without congressional authorization.” However, it also found that the U.S. District Court should not have expanded the injunction beyond the plaintiff jurisdictions. It vacated the nationwide injunction and sent it back to district court for “a more searching inquiry into whether this case justifies the breath of the injunction imposed.”
InChicago v Sessions, the City of Chicago argued, in part, that the Department cannot condition a grant on 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, 2017, U.S. District Judge Harry Leinenweber temporarily halted imposition of the two new conditions, extending the injunction on the two new grant conditions to all grantees nationwide. Rather than release the FY17 Byrne JAG grants without the new conditions, the Department withheld the awards during appeal.
In April 2018 a three-judge panel of the U.S. Court of Appeals for the 7th Circuit unanimously concluded that the Administration does not have a legal basis for imposing the new notice and access conditions. Two of the three judges wrote that “nationwide injunctions should be utilized only in rare circumstances,” but determined that it was appropriate in this circumstance because “[t]he case presents essentially a facial challenge to a policy applied nationwide, the balance of equities favors nationwide relief, and the format of the Byrne JAG grant itself renders individual relief ineffective to provide full relief.” The third, Judge Daniel Manion, agreed the Department does not have the legal authority to impose the conditions but dissented on the nationwide nature of the injunction.
The Department returned to the 7th Circuit seeking anen banc(or full court) rehearing of the three-judge panel decision with respect to the nationwide scope of the injunction, arguing that the injunction against the two new conditions should apply only to City of Chicago. The Department also requested a stay of the nationwide aspect of the injunction pending disposition of its petition. On June 4, the 7th Circuit granted rehearingen banc“but only as to the geographic scope of the preliminary injunction...”.
On Tuesday, June 26, 2018, the 7thCircuit lifted the nationwide injunction, clearing the way for the Department to release the awards with the two new conditions included while the lawsuit continues to work its way through the appeals process. By that evening, the Department had begun releasing the FY17 awards.
On July 27, in response to a request for summary judgment inChicago v. Sessions, Judge Leinenweber issued his final ruling. In it he found that the two new conditions imposed on the FY17 Byrne JAG are unconstitutional. He also found the requirement to certify compliance with 8 U.S.C. Section 1373 is unconstitutional. Judge Leinenweber reinstated the nationwide injunction, but stayed the injunction pending the upcoming decision by the full 7th Circuit Court of Appeals.
On July 20, the U.S. Conference of Mayors and the City of Evanston brought a separate lawsuit asking for a temporary restraining order and preliminary injunction against imposition of Section 1373 and the two new conditions on all jurisdictions. Judge Leinenweber indicated he will rule on the motion on August 9.
Nearly all observers believe the question of the constitutionality of the new conditions will go to the Supreme Court before it is finally resolved, a process that could take years.
None of the legal actions to date lift from grantees the requirement to certify compliance with the requirements of 8 U.S.C. Section 1373. The certification forms must be submitted before grantees may draw down their awards.
In the meantime, DOJ’s Bureau of Justice Assistance (BJA) has released the FY18 solicitations.
Some Members of Congress are seeking to define and address the issue of sanctuary cities 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. That 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 2017, the House passed the No Sanctuary for Criminals Act by a nearly party-line vote of 228-195 . That 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.”