by Lisa Soronen, executive director, State and Local Legal Center  

Congress created the Edward Byrne Justice Assistance Grants Program (Byrne JAG) in 2005 to provide “flexible” funding for state and local police departments. In April 2017, the Department of Justice (DOJ) required Philadelphia, Pennsylvania (and eight other jurisdictions) to provide documentation that it complies with 8 U.S.C. 1373, which prohibits state and local governments from restricting employees from sharing immigration status information with federal immigration officials.

Philadelphia sued Attorney General Jeff Sessions, arguing that the city complies with 8 U.S.C. 1373. A federal district court in Philadelphia agreed and issued a preliminary injunction preventing Sessions from denying the city Byrne JAG grant funding.

Among other things, Sessions objected to a Philadelphia policy of not responding to Immigration and Customs Enforcement (ICE) civil immigration detainer requests asking the city to hold an arrested, undocumented person until ICE can pick them up unless the request is accompanied by a judicial warrant.

DOJ’s position has been that to comply with 8 U.S.C. 1373, state and local governments must honor ICE civil immigration detainer requests signed by ICE agents; warrants signed by a judge are not required. The federal district court took a different view stating: “Obtaining a judicial warrant is not a burdensome procedure. ICE enforcement officers are well trained in preparing warrants based on ‘probable cause’ as the Fourth Amendment to the United States Constitution provides. Numerous United States judicial officers in this court are available on a 24/7 basis to review and approve warrants, which can then be transmitted electronically to a Philadelphia prison and lodged as a detainer against an inmate.”

This ruling has been an additional blow to DOJ’s attempt to crack down on so-called sanctuary jurisdictions. In July 2017, DOJ added two new requirements for state and local governments receiving Byrne JAG funds. Chicago sued Sessions, arguing that these new requirements are unlawful and/or unconstitutional. An Illinois federal district court granted Chicago’s request for a nationwide preliminary injunction temporarily disallowing DOJ from imposing them.    

More specifically, DOJ added a “notice” and an “access” requirement to receive Byrne JAG funds. Recipients were required (1) to provide 48 hours advance notice to the Department of Homeland Security regarding the scheduled release of “aliens” and (2) to allow access to correctional or detention facilities to meet with “aliens” and inquire about their right to be in the United States.

Hours before the Philadelphia district court ruled, DOJ sent 29 cities and counties letters stating that DOJ has preliminarily found them to not comply with 8 U.S.C. 1373.