Illinois District Court Judge Rules Against Conditioning Grants for Sanctuary Cities

Written By Alex Grzebyk

Background

Pursuant to 34 U.S.C. 10151, the Edward Byrne Memorial Justice Assistance Grant Program (“Byrne JAG”) supports state and local law enforcement, by providing federal funds for “personnel, equipment, training, and other criminal justice needs.” The City of Chicago has been receiving these funds since 2005, using them for things such as police vehicles and support for not-for-profits operating in high-crime areas.

In 2016, the Department of Justice notified all Byrne JAG applicants about a new condition on granting funds: all Byrne JAG applicants had to “certify compliance with all applicable federal laws[.]” One of the federal statutes in question – 8 U.S.C. § 1373 – prohibits local law enforcement and local government from “restricting the sharing of information with the Immigration and Naturalization Service (“INS”) regarding the citizenship status of any individual.” Upon a request for clarification, the Office of Justice Programs determined that 8 U.S.C. § 1373 was an “applicable federal law under the Byrne/JAG authorizing legislation.”

In July of 2017, Attorney General Jefferson Sessions placed two new conditions on grants provided by the program, often referred to as the “notice and access conditions.” The first condition involved the requirement that law enforcement provide federal immigration and customs enforcement (“ICE”) agents with “advance notice of the scheduled release from state or local correctional facilities of certain individuals suspected of immigration violations.” The second condition involved the requirement that local authorities provide ICE agents with “access to City detention facilities and [the] individuals detained therein.”

On August 8, 2017, the City filed a complaint against Attorney General Sessions, seeking both injunctive and declaratory relief. Even though the City admits that it “acquiesced to the compliance condition when accepting the 2016 Byrne JAG funds,” it is still asserting that all three conditions are unconstitutional and unlawful. In the complaint, the City argued, “These conditions are inconsistent with the Byrne JAG statute itself, with the limitations imposed by the Constitution’s Spending Clause and the Fourth Amendment, and with basic separation of powers principles. Compliance with the conditions would require Chicago to violate Illinois law. And it would undermine public safety and effective policing in the City and upend Chicago’s Welcoming City policy.”

Court Case

To warrant the entry of a preliminary injunction, there are four things the City has to establish: “that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of the equities tips in its favor, and that an injunction is in the public interest.”

The Court granted the City’s injunction as to the two conditions imposed by Attorney General Sessions in 2017. However, the Court denied the City’s motion as to the third condition regarding compliance with federal laws.

With regard to the notice and access conditions, the Court identified three issues. “Did Congress authorize the Attorney General to impose substantive conditions on the Byrne JAG grant? If so, did Congress have the power to authorize those conditions under the Spending Clause? And finally, does Section 1373 violate the Tenth Amendment?”

The Court opined that “[t]he contours of the Executive Branch’s authority are circumscribed by statute[.]” In that vein, the City focused its argument on the statutory language of Byrne JAG to argue that “Congress did not authorize the Attorney General to place substantive conditions on the Byrne JAG grant.” Attorney General Sessions responded, using 34 U.S.C. § 10102(a)(6) to assert that Congress had granted him express authority to “‘place special conditions on all grants’ and to ‘determine priority purposes for formula grants.’”

Ultimately, the Court sided with the City’s argument, stating that “[t]he notice and access conditions…exceed statutory authority, and, consequently, the efforts to impose them violate the separation of powers doctrine and are ultra vires.” The Court refused to determine whether the notice and access conditions violated the Spending Clause, since Congress never authorized Attorney General Sessions to impose them.

Moving on to the compliance condition, Attorney General Sessions argued that 34 U.S.C. § 10153 “furnishes [him with the] authority to require a Byrne JAG applicant’s compliance with federal law, including Section 1373.” In relevant part, that statute reads that “the applicant will comply with all provisions of this part and all other applicable Federal laws.” In response, the City argued that the word “applicable” therein should be read narrowly, only referring “to compliance with the narrow body of law governing federal grant-making.”

The Court opined that Congress intended for the grant to be included within the “applicable laws” referenced under Section 1373, refusing to apply the City’s argument that the word “applicable” should “have a narrowing effect.” Thus, any entity receiving funds is expected to certify compliance with federal law. Since the City failed to argue that it was unconstitutional under the Spending Clause, the Court did not address the issue. Instead, it turned to a Tenth Amendment analysis, finding that the condition was proper under the Tenth Amendment.

With regard to the notice and access conditions, the Court asserted that there was “no reason to think that the legal issues present in this case are restricted to Chicago.” The Department of Justice has the option to file an appeal to the 7th U.S. Circuit of Appeals with regard to this holding.

Societal Context

This case is just one spoke in the wheel of immigration policy and reform. In essence, the City of Chicago is taking a stance in the heated debate between the Trump Administration and the many sanctuary cities.

The term “sanctuary city” is used to describe cities or counties where local law enforcement agencies limit, in some fashion, their cooperation with federal immigration agencies. Generally, the purpose of these limits is to provide protection from deportation for illegal immigrants.

For example, Devin O’Malley, Media Affairs Coordinator for the Department of Justice, has stated, “By protecting criminals from immigration enforcement, cities and states with ‘so-called’ sanctuary policies make their communities less safe and undermine the rule of law.”

In contrast, the City of Chicago stated in their complaint that establishing themselves as a sanctuary city “promotes public safety by ensuring that no city resident or visitor, regardless of immigration status, is afraid to cooperate with law enforcement, report criminal activity to the police, testify as a witness in court, or seek help as a victim of crime[.]”

This is why the Byrne JAG grant has come into play. The Trump Administration has argued that the conditions imposed on the Byrne JAG grant “seek to protect communities and law enforcement[,]” thereby rebuking sanctuary cities. However, the district court’s ruling can be viewed as a stance against the Trump Administration’s attempts at undermining sanctuary cities. In the granting of the injunction, the court signaled to other sanctuary cities that its Chicago-based ruling should apply nationwide.

Nevertheless, the injunction is temporary, only blocking the Trump Administration from requiring notice and access to federal ICE agents for a short while. We have yet to see what immigration reform will come next from Congress and the Trump Administration. It is likely that this case will be appealed to the Circuit Court.

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Sources Cited

City of Chicago v. Sessions, No. 17-c-5729 (N.D. Ill. Sept. 15, 2017).

U.S. Const. art. I, § 8, cl. 1.

8 U.S.C. § 1373 (2012).

34 U.S.C. § 10151 (2012).

Edward Byrne Memorial Justice Assistance Grant Program, (last visited Sept. 25, 2017).

Matt Zapotosky, Judge Rules Justice Department Can’t Keep Grant Money From Uncooperative Sanctuary Cities, Wash. Post (Sept. 15, 2017).

Memorandum from Michael E. Horowitz, Inspector General, to Karol V. Mason, Assistant Att’y Gen. for the Office of Just. Programs (May 31, 2016).

Office of Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, (October 6, 2016).

Rescinding DACA: What that means and what comes next

Written By Katie M. Becker

“A principal feature of the removal system is the broad discretion exercised by immigration officials. Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all.” Arizona v. United States, 132 S.Ct. 2492, 2499 (2012).

 

Background

On Tuesday, September 5, 2017, Attorney General Jefferson Sessions publically announced the rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. In his public remarks, Attorney General Sessions described the DACA program as “an unconstitutional exercise of authority by the Executive Branch.” He analogized the fate of DACA with that of its extension program, Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”), which was nationally enjoined in the Fifth Circuit’s 2015 decision, Texas v. U.S., 809 F.3d 134. The nationwide injunction was effectively affirmed in 2016 by the Supreme Court of the United States in a one-sentence decision, after a 4-4 split vote.

In addition, President Donald J. Trump also issued a statement stressing his administration’s views that DACA is inherently unconstitutional. He noted that “officials from [ten] state[s] are suing over the program,” pressuring the Administration “to make a decision regarding [the program’s] legality.” President Trump remarked that he had been assured by the “Attorney General of the United States, the Attorneys General of many states, and virtually all other top legal experts” that “the program is unlawful and unconstitutional and cannot be successfully defended in court.” His remarks were largely informed by the outcome of the 2016 Supreme Court decision.

Following Attorney General Sessions’ and President Trump’s statements, the Acting Secretary of the Department of Homeland Security (“DHS”), Elaine Duke, issued a memo to the Department formally rescinding the June 15, 2012 Obama Administration memo that established DACA.

Deferred Action for Childhood Arrivals (DACA)

On June 15, 2012, under the Obama Administration, DHS Secretary Janet Napolitano issued a memo directing the agency to defer the initiation of removal proceedings against individuals who satisfied five criteria: (1) the individual came to the United States under the age of sixteen; (2) the individual continuously resided in the United States for at least five years prior to June 15, 2012; (3) the individual was currently enrolled in school, graduated from high school, obtained a GED certificate, or received an honorable discharge from the Armed Forces or U.S. Coast Guard; (4) the individual had not been convicted of a felony, a significant misdemeanor, or multiple misdemeanor offenses, and did not pose a threat to national security; and (5) the individual was, at the time of filing, no older than 30-years-old. Individuals who satisfied all five criteria, and passed a background check, were deemed eligible for deferred action.

Deferred action is an exercise of prosecutorial discretion, where DHS impliedly confers temporary lawful status upon eligible applicants while the agency foregoes initiating removal proceedings against them. The exercise of prosecutorial discretion is a hallmark of the American immigration system. This ability is limited to federal agency officials, and statutory restrictions protect the exercise from judicial review. Generally, this excludes the jurisdiction of courts to review an agency’s exercise of prosecutorial discretion.

Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)

On November 20, 2014, under the Obama Administration, DHS Secretary Jeh Johnson issued a memo announcing the expansion of the DACA program. The memo modified DACA to increase the scope of the program’s existing protected class. It also extended deferred action eligibility to a new class: the parents of children who were United States citizens or lawful permanent residents. The expansion “supplement[ed] and amend[ed]” the Napolitano memo. Like DACA, it was framed around the agency’s exercise of prosecutorial discretion.

Johnson’s memo expanded the scope of the existing DACA class in three ways: (1) it removed the 30-year-old applicant age cap; (2) it extended the renewal process to cover three years, as opposed to two years; and (3) it pushed back the arrived-in-the-United-States date from June 15, 2007, to January 1, 2010.

Significantly, DAPA also expanded deferred action eligibility to the parents of children who were United States citizens or lawful permanent residents. Individuals eligible for membership in the new class were required to satisfy six criteria: (1) the individual had to have a child who was a U.S. citizen or lawful permanent resident, as of November 20, 2014; (2) the individuals had to reside in the United States prior to January 1, 2010; (3) the individual had to be physically present in the United States, as of November 20, 2014; (4) the individual could not have lawful status; (5) the individual could not otherwise be considered a DHS enforcement priority; and (6) the individual’s application could not present any factors that would make deferred action inappropriate.

DAPA Litigation

District Court for the Southern District of Texas (2015)

In 2015, Texas, and 26 other states and state officials, filed suit in the U.S. District Court for the Southern District of Texas, against the United States and the DHS, to nationally enjoin the implementation of DAPA. The court was confronted with three issues: (1) whether Plaintiffs had sufficient standing to maintain a suit in federal court; (2) whether the DHS had the power to initiate the DAPA program; and (3) whether the program itself was constitutional.

In its pleadings, Plaintiffs argued that DAPA violated the “Take Care” Clause of the Constitution, as well as the Administrative Procedure Act (“APA”). The Government argued that acts of prosecutorial discretion were not subject to the APA and that DAPA’s criteria were “merely general guidance,” entitled to exemption from APA rulemaking procedures.

The court rejected the Government’s argument and found that judicial review was available under the APA, categorizing DHS’ actions, not as a failure to initiate removal proceedings (which would be precluded from judicial review), but as the conveyance of temporary legal status on the individuals to whom it granted deferred action. Ultimately, the court found that DAPA was subject to APA rulemaking procedures, and Plaintiffs “clearly prove[d] a likelihood of success on the merits” of their claim for the purposes of granting a temporary injunction

United States Court of Appeals for the Fifth Circuit (2015)

In 2015, the Government appealed, moving for a stay of the lower court’s decision. The Fifth Circuit affirmed the judgment. Significantly, the Fifth Circuit rejected the Government’s argument that the District Court’s injunction was limited only to Texas and the 26 other states that made up the Plaintiffs’ class, confirming the nationwide injunction on the program.

Supreme Court of the United States (2016)

In a per curiam opinion, the Supreme Court affirmed the ruling of the Fifth Circuit, with a 4-4 split vote. The opinion is a single sentence, and it serves as binding authority only within the Fifth Circuit.

DACA’s Future

Congressional Action

Congress has been unsuccessful, thus far, in offering comprehensive immigration reform. The Trump Administration continues to renew its stance on the issue, thereby forcing Congress’ hand and creating a somewhat impending political struggle that The Hill has already termed a “legislative arms race.”

Rep. Mike Coffman (R-Co.) initially introduced a “discharge petition” to force a vote on a bill which would have extended DACA permits and forced Republicans to immediately take up the issue. He later withdrew the petition after House Speaker Paul Ryan clarified the view on what would constitute “acceptable” DACA legislation.

In a show of bipartisanship, it is reported that Congressional leaders met on Wednesday, September 13, 2017, to discuss legislative options for DACA. Minority Leader Nancy Pelosi, House Speaker Ryan, Chairs of the Congressional Black, Hispanic and Asian Pacific Caucuses, the House Majority Leader and the Minority Whip were in attendance. Congress will have to overcome internal differences between their Congressional representatives in order to secure votes for a bipartisan piece of legislation.

Action in the Courts

The rescission of DACA spurred significant filings within District Courts across the country. In the Eastern District of New York, the democratic attorney generals of fifteen states and the District of Columbia jointly filed suit against the Trump Administration. The suit alleged that the Trump Administration had discriminatory motive in rescinding DACA, pointing to prejudicial statements made by the President during his presidential campaign.

A few days after that suit was filed, four more states jointly filed a separate suit. Spearheaded by California Attorney General Xavier Becerra, the suit challenged the rescission, calling it a violation of Due Process. The Department of Justice has responded to both suits, reasserting its prior arguments that DACA is unconstitutional.

A third suit was filed by former DHS Secretary Napolitano and the University of California school system.

With a fully staffed Supreme Court, and an issue ripe for review, the country will soon see if the Trump Administration’s rescission of DACA will stand, as well as whether the Fifth Circuit’s decision in U.S. v. Texas is an accurate predictor of the constitutionality of the program.

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Sources Cited

Memorandum from Janet Napolitano, Secretary of the Department of Homeland Security, to David V. Aguilar, Acting Commissioner, U.S. Customs and Border Protection, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children (June 15, 2012).

Memorandum from Jeh Johnson, Secretary of the Department of Homeland Security, to Leon Rodriguez, Director, U.S. Citizenship and Immigration Services, et al., Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents (Nov. 20, 2014).

Memorandum from John F. Kelly, Secretary of the Department of Homeland Security to Kevin K. McAlcenan, Acting Commissioner, U.S. Customs and Border Protection, et al., Rescission of November 20, 2014 Memorandum Providing for Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) (June 15, 2017).

Jefferson Sessions, Att’y General of the U.S., Att’y General Sessions Delivers Remarks on DACA (Sept. 5, 2017).

Donald Trump, President of the U.S., Statement from President Donald J. Trump (Sept. 5, 2017).

Memorandum from Elaine C. Duke, Acting Secretary of the Department of Homeland Security to James W. McCament, Acting Director, U.S. Citizenship and Immigration Services, et al., Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (Sept. 5, 2017).

Arizona v. United States, 132 S.Ct. 2492 (2012).

Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015).

Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015).

Holman v. Obama, 2016 WL 845310 (D. Nev. 2016).

Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015).

Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

U.S. v. Texas, 136 U.S. 2271 (2016).

Immigration and Nationality Act §242(g), codified at 8 U.S.C.A §1252(g) (2012).

Kurtis A. Kemper, Department of Homeland Security’s Program of Deferred Action for Childhood Arrivals (DACA), 17 A.L.R. Fed. 3d Art. 3 (2016).

Administrative Procedures Act §553, 5 U.S.C.A. §553 (2012).

Heather Caygle, House leaders to meet on future of Dreamers, Politico (Sept. 12, 2017, 8:41 PM).

Jordain Carney, Immigration arms race begins on Capitol Hill, The Hill (Sept. 12, 2017).

Yamiche Alcindor, Action to Protect Young Immigrants Already Stumbles in Congress, The New York Times (Sept. 12, 2017).

Sarah Binder, This is why Congress will have a hard time legalizing DACA, The Washington Post (Sep. 7, 2017).

Madeline Conway, 15 states and D.C. team up to challenge Trump on Dreamers, Politico (Sept. 6, 2017).

David Siders, California files suit against Trump on DACA, Politico (Sept. 11, 2017).

Michael D. Shear, Napolitano Sues Trump to Save DACA Program She Helped Create, The New York Times (Sept. 8, 2017).

Christina Marcos, Some GOP lawmakers are battling Trump and their party on DACA, The Hill (Sept. 1, 2017).

Harry Enten and Perry Bacon, Jr., Trump’s Hardline Immigration Stance Got Him To The White House, FiveThirtyEight (Sept. 12, 2017).

Mica Rosenberg, States file lawsuit challenging Trump decision on Dreamers, Reuters (Sept. 6, 2017).

Common Sense, Close Family, and Bona Fide Relationships: Hawaii Judge Expands Classes Exempt from Travel Ban

Photo via The Guardian

Written By Ian Ludd

 

ABSTRACT

Hawaii U.S. District Judge Derrick Watson ruled last Thursday that the government definition of “close family member” with respect to the Trump Administration’s Travel Ban exemption defies common sense, expanding the exemption to include grandparents, other family members, and refugees with formal assurances from a resettlement agency.

DISCUSSION

For the purposes of an exemption in the Trump Administration’s Revision Travel Ban (“EO-2”), Hawaii Judge Derrick Watson ruled that a grandparent is a “close family member,” despite the assertions to the contrary by the Government.

The Supreme Court, on June 26, in a per curiam opinion, specified that the stay on enforcement of EO-2 will remain in place for all who have a “credible claim of a bona fide relationship with a person or entity in the United States.” For a bona fide relationship with a “person” to be found, a close familial relationship is required. A relationship with an “entity” requires a formal, documented relationship formed “in the ordinary course, rather than for the purpose of evading EO-2.”

The Trump Administration, in issuing guidance to its agencies on the application and enforcement of EO-2, defined “close familial relationship” narrowly, excluding from its definition, grandparents, grandchildren, aunts, and uncles, amongst other family members. The Hawaii District Court found this definition to be the “antithesis of common sense,” contrary to the Supreme Court’s per curiam decision and other precedent.

The Government’s asserted definition of close family stemmed from a provision of the Immigration and Nationality Act (“INA”), applicable to family-based immigration visas. Nevertheless, the District Court found the use of this definition to be “cherry-picking,” ignoring other relevant immigration statutes that defined close family in a much broader sense.

The Hawaii District Court cited several Supreme Court cases evincing a preference for broad definitions of “close family.” The District Court pointed to the Supreme Court’s focus on a relationship nexus, reasoning that if the Supreme Court had intended to issue an exception only to “immediate family members,” it would have explicitly done so. Furthermore, the District Court reasoned that the definition used by the Government is inherently flawed, as it excludes “mothers-in-law,” despite the Supreme Court explicitly holding that EO-2 may not be enforced against a plaintiff’s mother-in-law and those “similarly situated.”

The District Court also found that refugees covered by a formal assurance between the Government and a United States refugee resettlement agency may not be excluded by EO-2. The Government argued that any contract in such an arrangement exists only between the State Department and the resettlement agency, not the refugee. The District Court found this argument unconvincing.

“Nothing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of EO-2. An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades. Bona fide does not get any more bona fide than that.”

The Trump Administration, bypassing the Ninth Circuit, asked the Supreme Court directly to clarify its per curiam ruling and to block the ruling by the Hawaii District Court. On July 19, 2017, the Supreme Court denied the Government’s motion for clarification in a brief unsigned order. The Court further stated that “[t]he District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government’s appeal to the Court of Appeals for the Ninth Circuit.”

The Supreme Court is set to definitively rule on the Revised Travel Ban this October.

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Sources Cited

Trump v. Int’l Refugee Assistance Project, Nos. 16-1436 (16A1190) and 16-1540 (16A1191), slip op. (U.S. June 26, 2017).

Hawaii, et al. v. Trump, et al., Civil No. 17-00050 DKW-KSC (D. Haw. July 13, 2017) (order granting in part and denying in part plaintiffs’ motion to enforce, or in the alternative, to modify preliminary injunction).

Barbara Campbell, et al., U.S. Challenges Hawaii Judge’s Expansion of Relatives Exempt From Travel Ban, NPR (July 14, 2017).

Joel Rose & Bill Chappell, Supreme Court Revives Parts Of Trump’s Travel Ban As It Agrees To Hear Case, NPR (June 26, 2017).

Julia Edwards Ainsley, et al., Supreme Court gives Hawaii until Tuesday to answer Trump travel ban motion, REUTERS (July 15, 2017).

Adam Liptak, Trump Refugee Restrictions Allowed for Now; Ban on Grandparents Is Rejected, N.Y. Times (July 19, 2017).