Despite Little Action Yet by Trump Administration on Sanctuary Cities, States and Localities Rush to Respond to Rhetoric

Editor's Note: This article was published before it was reported that the Trump administration sent letters to nine “sanctuary” jurisdictions asking them to prove compliance with federal immigration law.

Despite strong statements by the Trump administration regarding its intent to financially penalize states and localities that do not fully cooperate with federal immigration enforcement, there has been little in the way of new policy with regard to these so-called sanctuary jurisdictions. Still, state and local governments have engaged in a flurry of responses to the different tone and broader interior enforcement policy changes emerging from Washington.

At least 33 states have introduced or enacted legislation requiring local law enforcement to cooperate with U.S. Immigration and Customs Enforcement (ICE) requests to hold soon-to-be-released noncitizen inmates for deportation proceedings. At the other end of the spectrum, some states and cities have responded to mounting community opposition by disengaging from federal immigration efforts or showcasing welcoming policies toward immigrants.

A pledge to strip “all federal funding to sanctuary cities” was a key campaign theme for candidate Donald Trump, whose rallies often featured parents whose loved ones were killed by unauthorized immigrants. His promise echoed calls made by some in Congress to restrict funding to sanctuary jurisdictions since the July 2015 murder of Kathryn Steinle by a recently released unauthorized immigrant in San Francisco. To date, the administration has threatened to withhold funding from noncompliant jurisdictions, but has not taken steps to do so. A provision in an executive order on interior enforcement signed by President Trump on January 25 and a statement made by Attorney General Jeff Sessions on March 27 remain the only public expressions of how the administration intends to translate its promise into policy reality.

In the executive order, Trump declared that jurisdictions that “refuse to comply” with 8 U.S.C. § 1373, a provision of federal law on information sharing between local and federal authorities, would be ineligible to receive federal grants. To reiterate this position, Sessions made a surprise appearance in the White House briefing room—an unusually high-profile setting—to condemn cities that refuse to honor detainer requests and warn that jurisdictions that apply for Justice Department grants must certify compliance with Section 1373.

Neither declaration amounted to a new policy development. Certifying compliance with Section 1373 was already a condition for Justice Department grants under the Obama administration. The Trump administration has offered no details on how jurisdictions would be determined to be noncompliant, what steps would be taken to strip them of federal funds, or which grants would be at stake. For now, the administration’s sanctuary city policy still looks like a campaign promise rather than a concrete plan of action.

Facilitating Exchange of Information

Though the policy to neutralize sanctuary jurisdictions remains vague, the administration has clarified the instrument it intends to use: 8 U.S.C. § 1373. Under the law, no government entity or official can be prohibited from exchanging information with the Department of Homeland Security (DHS) regarding the immigration status of any individual. Inspired by a set of House Republican policy proposals known as the Contract with America, Section 1373 was enacted in 1996 as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

Since its enactment, no jurisdiction has ever been found explicitly in violation of the law. It has, however, been the subject of litigation as states and localities attempted to understand their obligations under the law and challenge its contours. Immediately after its implementation, then-New York City Mayor Rudolph Giuliani sought an injunction in City of New York v. United States, claiming Section 1373 violated the Tenth Amendment of the U.S. Constitution. The district court and later the Second U.S. Circuit Court of Appeals ruled against Giuliani, finding that the statute did not “directly compel states or localities to require or prohibit anything.”

As case law on Section 1373 has evolved since the Second Circuit decision, it has become clear that the statute does not obligate states to share with federal officials information they do not already collect on immigration status. In 2009, the Court of Appeal of California, Second District found that prohibiting the collection of information did not violate Section 1373. The case, Sturgeon v. Bratton, was brought by a Los Angeles resident seeking to stop enforcement of a Los Angeles Police Department (LAPD) policy, Special Order 40, which prohibits LAPD officers from initiating police action with the sole objective of discovering the immigration status of an individual and arresting him or her for illegal entry.

In 2016, at the request of Rep. John Culberson (R-TX), the Justice Department’s Inspector General conducted an investigation into compliance with Section 1373, selecting a sample of states and local jurisdictions. Of those, the investigation found only Chicago had an ordinance inconsistent with the plain language of the law. The ordinance prohibited city employees from providing immigration status information unless “required to do so by legal process.” The review also found concerns with local laws and policies in Cook County, Illinois; Orleans Parish, Louisiana; Philadelphia; and New York City that “may have a broader practical impact on the level of cooperation afforded to ICE by these jurisdictions and may, therefore, be inconsistent with at least the intent of Section 1373” (emphasis added). After the investigation, the Justice Department sent Culberson a letter confirming that all Office of Justice Programs grant recipients were required to certify compliance with all federal laws and regulations, including Section 1373. No action was taken against Chicago or any of the jurisdictions that were found to have policies potentially conflicting with Section 1373.

Reactions of States and Cities

As the Trump administration moves to take a more activist posture against noncompliant jurisdictions than prior administrations have, the rhetoric has set off a ripple effect of states and localities rushing to take policy action of their own, at different points along the “sanctuary” spectrum.

A Move to Restrict Cooperation at the City and State Level

Several states have jumped into the debate with bills that restrict cooperation with federal immigration officials. These include California, Illinois, Maryland, Nevada, and New York. The California Senate passed SB 54, which would prohibit state and local law enforcement agencies from using resources—including personnel, facilities, and equipment—for immigration enforcement purposes without a court warrant. The bill, which is pending in the Assembly, goes a step further than the state’s Trust Act, enacted in 2014, which prevents local jails from holding noncitizens for additional time because of their immigration status, except for those who have committed certain serious crimes, such as murder, robbery, rape, or kidnapping.

In March, Vermont Governor Phil Scott signed into law S.79, which prohibits state and local police officers from enacting 287(g) agreements without his approval. The statute, part of the Immigration and Nationality Act, allows the federal government to enter into agreements with state or local law enforcement agencies under which certain officers or employees are trained and authorized to assist in enforcement of federal immigration laws. The new Vermont law prohibits public employees and contractors from collecting or disseminating “personally identifying information,” including an individual’s immigration status, for any kind of federal registry. The law is also carefully worded to explicitly recognize compliance with Section 1373, as is the case in some other jurisdictions.

In addition, a number of cities have either joined or rededicated themselves to the “sanctuary movement.” Shortly after Trump signed the executive order on interior enforcement, New York City Mayor Bill de Blasio announced that the city would continue to “defend” its unauthorized immigrants. The city already had programs to assist unauthorized immigrants, including the provision of municipal ID cards issued regardless of immigration status, and a city-funded program to provide legal defense to immigrants facing deportation. That program will be expanded statewide over the next year with a $10 million grant from the state government. New York City also limits its law enforcement cooperation with ICE by only transferring from its jails noncitizens who have committed a narrow range of serious crimes. However, de Blasio recently asked for a revision of this policy, acknowledging that the city would be willing to expand the list of eligible serious crimes. Other cities and counties have also taken steps in recent months to resist cooperation with ICE or increase their welcoming policies towards immigrants. These include Seattle; West Palm Beach City, Florida; Baltimore County, Maryland; Ann Arbor, Michigan; and Pasadena, California. They join other major jurisdictions such as Boston, Chicago, Detroit, Las Vegas, Los Angeles, New Orleans, San Francisco, and Washington, DC that had previously limited their cooperation with ICE.

Siding with the Trump Administration

At the other end of the sanctuary spectrum, many states and local jurisdictions have joined ranks with the Trump administration, enacting or drafting laws requiring local law enforcement cooperation with ICE requests to hold inmates for deportation proceedings. Among the most stringent: Mississippi Governor Phil Bryant recently signed an anti-sanctuary law that restricts state agencies, localities, and colleges from adopting policies that limit or prohibit cooperation with federal immigration authorities.

Meanwhile, Texas Governor Greg Abbott has aimed his efforts at a single jurisdiction in his state: Travis County, which includes Austin. Shortly after Trump took office, Travis County Sheriff Sally Hernandez outlined a new policy under which the sheriff’s office would only honor requests to detain noncitizens if ICE obtained a warrant from a judge ordering their arrest, or if the noncitizen had been charged with murder, sexual assault, or human smuggling. Abbott immediately sent Hernandez a letter threatening to withhold state funding if she did not reverse the policy, and eventually canceled $1.5 million in criminal justice grants promised to the county. Statewide, Abbott supports Senate Bill 4, which would take a number of steps to discourage sanctuary policies, including making local law enforcement liable for the crimes of released noncitizens and limiting state funds to jurisdictions with sanctuary policies. The bill, which passed the Texas Senate, is undergoing changes in the House.

In an abrupt about-face the day after Trump signed the executive order outlining plans to cancel federal funding for sanctuary jurisdictions, Miami-Dade County Mayor Carlos A. Giménez ended the county’s sanctuary policies and ordered county officials to comply with all ICE detention requests. However, a Miami-Dade circuit judge ruled that the revised policy violated the Constitution because it allowed continued detention of prisoners beyond their release date. The county is appealing the ruling.

Future Legal Obstacles

If the administration takes more affirmative steps to end or limit funding to sanctuary governments, the jurisdictions undoubtedly will push back in court. Some cities have already filed lawsuits in anticipation of such a move: In California, San Francisco, Santa Clara, and Richmond have done so, as have Chelsea and Lawrence in Massachusetts. Their actions challenge the executive order while seeking declarations from the courts that their policies are in compliance with Section 1373. The cases seek to challenge the executive order on constitutional provisions of separation of powers, due process, the Tenth Amendment’s anti-commandeering provision, and the limits of congressional spending power.

Three governing Supreme Court cases, South Dakota v. Dole, Printz v. United States, and National Federation of Independent Business v. Sebelius, suggest that the federal government must first establish that the conditions placed on federal funding are related to purpose of the funding, and second, that the thrust of the withholding does not coerce the state into compliance.

Attorneys for the government have argued that the cases are too premature to be litigated since no funds have been withheld. While Sessions did not detail which Justice Department grants could be withheld from sanctuary jurisdictions, the department allocated $4.7 billion in 4,862 grants through 313 unique grant programs in fiscal 2016.

• Executive order on enhancing public safety in the interior of the United States
• Remarks by Attorney General Jeff Sessions on sanctuary cities
• The Hill article on state and local reactions to sanctuary jurisdiction funding threats
• Mississippi law restricting sanctuary jurisdictions
• Vermont law restricting 287(g) agreements and the collection of personal information
• Texas Senate Bill 4
• California Senate Bill 54

National Policy Beat in Brief

Apprehensions of Southwest Border Crossers Continues to Decrease. Arrests of noncitizens illegally crossing the U.S.-Mexico border decreased in March to the lowest monthly figure in more than 17 years, according to the Department of Homeland Security (DHS). In congressional testimony, Homeland Security Secretary John Kelly reported fewer than 17,000 apprehensions occurred during March, including just 1,125 families and 1,043 unaccompanied children, primarily from Central America or Mexico. March marked the fifth straight month of decline for the fiscal year that began October 1. Kelly credited U.S. Customs and Border Protection (CBP) and the leadership of President Trump for the declining numbers. It is unclear if apprehensions will continue to decline, as they normally increase as the weather improves.

• Homeland Security Secretary John Kelly’s testimony before the U.S. Senate Committee on Homeland Security and Governmental Affairs
• CBP data on Southwest border apprehensions by sector
• BBC News article on the decreased apprehensions

Sessions Issues Memo Directing Increased Prosecution of Immigration Offenses. Attorney General Jeff Sessions has called for increased federal prosecution of immigration-related crimes. In a memo dated April 11, Sessions directed federal prosecutors to prioritize certain crimes, including bringing in or harboring unauthorized immigrants (8 U.S.C. § 1324); illegal entry (8 U.S.C. § 1325); illegal re-entry by noncitizens with prior removals (8 U.S.C. § 1326); aggravated identity theft and similar fraud (18 U.S.C. § 1028A, 18 U.S.C. § 1546); and assaulting, resisting, or impeding officers (18 U.S.C. § 111). The memo calls on prosecutors to seek judicial orders of removal in such cases. When a noncitizen receives a judicial order of removal, the government can bypass full immigration court proceedings and instead commence the removal immediately after the individual has served time for the federal crime. The memo also directed all 94 U.S. Attorney districts to designate a border security coordinator responsible for overseeing the investigation and prosecution of immigration-related offenses, attending training on such offenses, and maintaining and reporting statistics on prosecutions.

Immigration-related crimes already make up a large part of the federal criminal caseload, accounting for 52 percent of all federal prosecutions in FY 2016, according to data compiled by the Transactional Records Access Clearinghouse (TRAC). Of the approximately 133,000 federal prosecutions in FY 2016, more than 69,000 were immigration-related, while the remainder was for all other federal crimes.

• Memo from Attorney General Jeff Sessions, “Renewed Commitment to Criminal Immigration Enforcement”
• TRAC report on prosecutions of immigration-related federal crimes
• Washington Post article on the effort to increase prosecutions

Shortly After FY 2018 H-1B Cap Season Opens, Administration Issues Executive Order on Hiring U.S. Workers. On April 19, President Donald Trump signed an executive order entitled “Buy American and Hire American.” In addition to encouraging the use and purchase of goods and materials produced in the United States, the order mandates that government agencies issue new rules and recommend reforms to protect the interests of U.S. workers over foreign workers. Specifically, it requires the Departments of State, Justice, Labor, and Homeland Security to (1) issue new rules and guidance “to protect the interests of United States workers” and prevent fraud and abuse, and (2) suggest reforms to “help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

The order was issued shortly after the government received far more applications than slots exist for H-1B visas for the next fiscal year. On April 3, U.S. Citizenship and Immigration Services (USCIS) began accepting petitions for processing of H-1B visas for FY 2018, which are subject to the annual H-1B cap. During the first week following the opening of the application, USCIS received 199,000 H-1B petitions. Because this is exceeds the statutory limit of 85,000 H-1B visas that USCIS can grant in one year, USCIS will select which of the received petitions make the cap through a computer-generated lottery. This is the fifth year in a row that the government received more applications than visas available within the first week of applications being accepted, forcing the lottery process.

The same week the H-1B application process opened, three federal agencies published memos reflecting new efforts to protect the interests of U.S. workers. The Department of Labor announced that it will (1) use all of its existing authority to initiate investigations of those who violate the H-1B program, (2) consider changes to the H-1B’s Labor Condition Application to increase transparency, and (3) continue to engage stakeholders on how the program may be revised to provide greater protections to U.S. workers. Also, USCIS announced it will take a more targeted approach to its H-1B site visits, focusing on (1) cases where the employer’s basic business information cannot be validated; (2) H-1B dependent employers (meaning companies where at least 15 percent of the staff are on H-1B visas); and (3) employers petitioning for H-1B workers who work offsite at another company’s location. And the Justice Department reiterated its commitment to investigating and “vigorously prosecuting” claims of discriminatory hiring preferences that favor H-1B visa holders over U.S. workers.

• Labor Department announcement on plans to protect U.S. workers from H-1B program discrimination
• USCIS announcement on measures to detect H-1B visa fraud and abuse
• Justice Department announcement cautioning employers not to discriminate against U.S. workers
• USCIS news release on reaching the FY 2018 H-1B cap and completing the selection process

Administration Pauses Declined Detainer Report Amid Errors. U.S. Immigration and Customs Enforcement (ICE) announced that it is temporarily suspending publication of its weekly Declined Detainer Outcome Reports as it seeks to “analyze and refine” its reporting methodologies. The report, newly required under an executive order signed by President Trump, is designed to highlight state and local governments that resist cooperating with ICE by declining detainers, i.e. requests by ICE to hold noncitizens for up to 48 hours past their scheduled release date. The report lists the jurisdictions with the highest volume of declined detainers and includes a list of crimes or charges associated with released noncitizens. The administration had published three such reports so far, each of which was widely criticized for containing various errors.

• ICE announcement on suspending the report
• Archived Declined Detainer Outcome Reports
• The Hill article on the report and the errors that led to its suspension

FBI Investigates $50 Million EB-5 Visa Fraud Operation. FBI agents raided several Los Angeles homes and offices this month as part of a multiyear investigation into a suspected $50 million EB-5 visa fraud operation. According to federal filings, the California Investment Immigration Fund received money from more than 100 Chinese nationals and helped many to obtain legal permanent residence (i.e. green cards) through the investor visa program. The EB-5 program provides permanent residence to foreign nationals who invest in a commercial project in the United States that creates at least ten U.S. jobs. However, the projects promised by the California Investment Immigration Fund were never completed.

Fraud in the EB-5 program has long been a concern. A 2015 Government Accountability Office (GAO) assessment found various fraud risks, including difficulty verifying that investment funds were obtained lawfully (a primary EB-5 requirement), as well as the existence of various and “constantly evolving” investment-related schemes to defraud investors.

• Los Angeles Times article on the investigation

Trump Announces Intent to Nominate New USCIS Director. President Trump announced his intention to nominate Lee Francis Cissna as Director of U.S. Citizenship and Immigration Services (USCIS). Cissna is Director of Immigration Policy in the Office of Policy within the Department of Homeland Security (DHS). Before that, he worked in the USCIS Office of Chief Counsel, served as a Foreign Service Officer within the State Department, and was detailed to the office of Senate Judiciary Committee Chairman Charles Grassley (R-IA).

USCIS processes immigrant, nonimmigrant, and naturalization applications. If confirmed by the Senate as Director, Cissna would be responsible for executing the Trump administration agenda on legal immigration.

• White House press release on the Cissna nomination

Mexican Government Giving Residency to Hundreds of Cubans Stranded by U.S. Policy Change. The Mexican government has begun granting residency permits to 588 Cubans stranded at its northern border city of Nuevo Laredo. The Cuban migrants had been making their way to the United States when in January the U.S. government ended its favorable policy on admission of Cubans to the United States, stranding them in Mexico.

The former “wet-foot, dry-foot” policy allowed Cuban migrants who reached U.S. land to be paroled into the country, while those intercepted at sea were returned to Cuba. The Obama administration in its final weeks ended the “dry foot” aspect of the policy as part of a larger normalization of relations between the United States and Cuba.

• New York Times article on the Mexican residency permits
• MPI commentary on the U.S. policy change

Temporary Protected Status Due to End for Guinea, Liberia, and Sierra Leone. Temporary Protected Status (TPS) will end May 21, 2017 for Guinea, Liberia, and Sierra Leone. The termination was first announced September 2016 by Homeland Security Secretary Jeh Johnson. The three countries were designated for TPS in November 2014 following the outbreak of Ebola in West Africa. With the end of widespread transmission of the virus, Johnson determined that conditions in the countries no longer support the designation.

TPS provides relief from deportation and eligibility for work authorization to nationals of designated countries. As of May 21, TPS beneficiaries from these three countries will continue to hold any other immigration status they have acquired and maintained while registered for TPS; however, if they have no other lawful status, they will no longer be protected from removal and will become ineligible for employment authorization. Some 930 individuals from Guinea, 1,180 from Sierra Leone, and 2,160 from Liberia are currently in the United States on TPS, according to USCIS.

• USCIS news release on TPS changes for Guinea, Liberia, and Sierra Leone

State Policy Beat in Brief

Texas Maintains Spending on Border Security Despite Budget Shortfall. Texas will pass a new two-year state budget in June that faces a $6 billion shortfall, primarily due to a prolonged oil slump. While most parts of state government will be facing cuts, including more than $2 billion in proposed reductions to Medicaid and $300 million to public universities, both the state Senate and House have so far largely spared border security. Texas’s border operation costs the state $800 million over a two-year cycle. Even as unauthorized border crossings have decreased and President Trump has promised to increase federal border manpower, Texas lawmakers have asserted that their border security efforts must be maintained because federal funding will take time to materialize.

• Texas Tribune article on the border funding