Its newest round of letters to 23 jurisdictions appears to be a “fishing expedition,” one expert says.
On Wednesday, the Department of Justice (DOJ) sent letters to 23 states and localities urging them to provide further evidence that they are complying with a specific federal law—or be subpoenaed. The Justice Department is also threatening to withhold an important federal public-safety grant that gives millions to local police departments.
The following language gets to the heart of the new request (emphasis added):
“After reviewing your response, the Department remains concerned that your jurisdiction’s laws, policies, or practices may violate section 1373, or, at a minimum, that they may be interpreted or applied in a manner inconsistent with section 1373.”
As that language makes clear, this is not the first letter to have been sent to sanctuary jurisdictions, asking them to prove their compliance with this federal statute, U.S. Code Section 1373. The statute says that cities can’t stop their employees from sharing information about immigration status of a resident with the federal government. This new letter is a follow-up to the 29 sent in November, responses to which appear to have been unsatisfactory to the DOJ in some way, or absent. (Other cities passed the preliminary round of inquiries.)
The latest round of letters comes after Chicago sued the feds on this front, and won. Mayor Rahm Emanuel announced that lawsuit after U.S. Attorney General Jeff Sessions went ahead and tagged extra conditions to an important federal crime-fighting grant in July 2017. Sessions asked that cities “allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities” in exchange for that funding. A federal judge in Chicago sided with the city, saying that the government may have exceeded its authority.
In light of these previous rulings, the DOJ appears to be adapting its letters, said Rick Su, a law professor specializing in local government and immigration at University of Buffalo. “It’s a bit of a cat-and-mouse game, and they’re refining it—getting closer and closer,” he said. “One thing that all those courts allowed was to condition this grant with 1373. Now, that’s actually quite narrow—[previously, the DOJ] wanted to do more than that … Now, we’re back to 1373.”
These new letters suggest that the DOJ hopes to push its own, broader interpretation of how 1373 can be violated, Su added.
“My sense is: This is a fishing expedition,” he said. “They already have the [cities’ and states’] formal policies for 1373 review. These things are publicly available—they certainly must have been given to the DOJ in the initial round of inquiry if the DOJ didn’t have them already. Essentially, now they’re saying, ‘Yeah, we have your formal policy, but we think there’s some hidden policy somewhere. We don’t know why people aren’t calling us all the time and helping us out.’”
The request, this time around, is broad, asking for any “letters, orders, instructions, guidance” —“formal or informal”—given to law enforcement in a given period of time. “What I imagine that they’re looking for this time is some sort of email, some badly-written text, notes, very, very informal memos,” Su said, “that is written in such a way that they can use it as a smoking gun—because they don’t have a smoking gun.”
It’s important to note a couple of things about about 1373, here: It’s written as a restriction on a restriction—it does not demand that a city affirmatively gets its employees to share information on immigration status. Second, it prohibits a “don’t tell” policy, and what localities have done instead is institute “don’t ask” and “don’t use municipal resources” policies, Su explained. In doing so, these sanctuary cities insist, they are actually not in violation of 1373.
San Francisco—one of the jurisdictions the DOJ sent its newest letter to—limits cooperation with Immigration and Customs Enforcement (ICE), for example, by declining ICE’s requests to detain individuals ICE suspects are deportable for longer than their legal sentence (the legality of which many courts have questioned), or by declining to share information about the release date and time of these individuals. So, essentially, this is a battle of interpretation.
CityLab contacted the office of San Francisco’s City Attorney Dennis Herrera, who filed the first lawsuit against the executive order threatening sanctuary cities—and got a favorable ruling. His office is reviewing the DOJ letter, but emphasized that it has never been in violation of 1373.
“We’re also in full compliance with federal immigration law. What the law requires is narrow, and San Francisco follows the law. It’s that simple,” Herrera said in an email statement to CityLab. “San Francisco prioritizes using our limited law enforcement resources to actually fight crime, not break up hardworking families. We leave it to the federal government to enforce immigration law, and we are going to continue to apply for federal grants that we are eligible for.”
It’s hard to say how cities will react to this latest letter—or the possible escalation of what is at the moment a routine verification process to a subpoena investigation. They may comply with the request one one hand, and push back in court against the demand, on the other. At least so far, pushing back seems to be paying off.