Attorney General Jeff Sessions on Monday released a memo explaining how the federal government will target “sanctuary” jurisdictions, narrowly defining what constitutes non-cooperation.
The language appears designed to align with a federal judge’s ruling last month. U.S. District Judge William Orrick ruled that an executive order signed by President Donald Trump in January was overly broad and could not take effect, but he indicated that the federal government could withhold funds from grants where Congress specifically had conditioned cooperation with a federal immigration law.
“The first effort taken on it needs to be a very safe bet for the courts, and that first step should rein most of them in.”
“After consultation with the Secretary of Homeland Security, I have determined that, for purposes of enforcing the executive order, the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to comply,'” with a federal statute that requires cooperation.
That law makes it illegal to restrict any government entity or official “from sending … information regarding the citizenship or immigration status, lawful or unlawful, of any individual” to the federal government.
It does not specify whether that covers requests by Immigration and Customs Enforcement officials to hold illegal immigrants in jail until federal authorities can take them into custody. Sanctuary city advocates generally interpret the statute narrowly and argue that the federal government cannot force local governments to honor so-called detainers.
But Jessica Vaughan, director of policy studies at the Center for Immigration Studies, said there is a good legal argument that it does apply to detainers.
“It depends on the policy to some extent,” she said.
A report last year by the Justice Department’s Office of the Inspector General suggested that the statute may require compliance with detainers: “Similarly, we have concerns that other local laws and polices, that by their terms apply to the handling of ICE detainer requests may be a broader practice impact on the level of cooperation afforded to ICE by these jurisdictions and may, therefore, be inconsistent with at least the intent of” the statute.
The report cited Cook County in Illinois, Orleans Parish in Louisiana, Philadelphia, and New York City as jurisdictions that have policies that might conflict with the law.
Ira Mehlman, a spokesman for the Federation for American Immigration Reform, said he believes there is a case to be made that the statute requires jurisdictions to honor detainers.
“I think it does cover that sort of obstructionism,” he said.
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Advocates of strict immigration enforcement said Sessions is smart to define sanctuary policies more narrowly.
“The first effort taken on it needs to be a very safe bet for the courts, and that first step should rein most of them in,” said William Gheen, founder of the Americans for Legal Immigration political action committee. “This is the first major thing that Attorney General Sessions has done on the immigration front, and he’a very strategic person.”
David Cross, a spokesman for Oregonians for Immigration Reform, said cutting off grant funding likely would have a major impact. He noted that the state of Oregon received more than $1.7 million in 2016 from just one program — the State Criminal Alien Assistance Program.
“That would hire a lot of prison guards,” he said. “I don’t know how they’re going to make that up … This is something that will directly affect their budgets.”
Although Sessions indicated in his memo that he would apply the policy only to grants awarded by the Justice Department and the Department of Homeland Security, he also noted that Congress could take additional steps to “tailor grants or to impose additional conditions on grantees.”
The memo states that the Justice Department in the past has tailored grant funding to homeland security, violent crime, and domestic violence.
“Going forward, the Department, where authorized, may seek to tailor grants to promote a lawful system of immigration,” Sessions wrote.
Gheen said other factors might put pressure on sanctuary jurisdictions. He predicted that those cities and counties will see an influx of illegal immigrants coming from other parts of the United States. That will strain local resources, he said. In addition, he added, residents of those areas might push back once the policies of their local officials get put in the spotlight.
“The more you fight [Trump] on this and you’re on the wrong side of illegal immigration — on the side of the illegal-alien invasion side of the issue — the more people pay attention,” he said.