Justice Department Tests Mayors With Its Latest Threat on Immigration Enforcement

WASHINGTON — The Justice Department’s threat of legal action against 23 jurisdictions suspected of noncompliance with federal immigration enforcement not only disrupted the start to the U.S. Conference of Mayors’ annual winter meeting this week, but could continue to delay disbursement of more than $250 million in law enforcement funds to cities and states.

That doesn’t just mean “sanctuary cities.”

Leaders in Chicago expect a Seventh U.S. Circuit Court of Appeals ruling on whether the federal government has the statutory authority to impose conditions on justice assistance grants and whether a lower court’s injunction applies nationally any week now. But the agency’s latest move muddies the waters a bit more.

“The stakes for cities here are very high,” said Brian Haussmann, attorney with Chicago-based Tabet DiVito & Rothstein, speaking to a room full of mayors Thursday at the Capital Hilton in the nation’s capital.

A September injunction in a U.S. District Court affirmed the U.S. Conference of Mayors’ ability to join the case because the ramifications would extend to its member mayors and other grant programs they rely on for law enforcement.

Haussmann anticipates the U.S. Supreme Court may ultimately decide the case, but Philadelphia, San Francisco and Los Angeles are all entangled in similar lawsuits with the Justice Department.

“They knew that America’s mayors were meeting here in D.C., and were in fact preparing to visit the White House, and to do this while we’re all here in town I think it’s intentionally meant to thumb us in the eye,” Jorge Elorza, the Democratic mayor of Providence, Rhode Island, told Route Fifty after the legal briefing. “It’s very difficult to negotiate or to work with anyone who takes that approach.”

Dialogues concerning a path to citizenship for Dreamers, previously protected under Deferred Action for Childhood Arrivals before President Trump ended the program in September, also seem destined to dead-end.

National Immigration Law Center attorney Avideh Moussavian explained to the mayors present that while a bipartisan Senate effort is likely to see success, House Speaker Paul Ryan has proven reluctant to take up the issue.

“We see in Congress conversations that sometimes happen without our people at the table,” Los Angeles Mayor Eric Garcetti, a Democrat, said during a USCM Immigration Committee meeting.

After March 5, former DACA recipients whose status is expiring won’t be able to renew their protections. Those recipients whose status expires prior to the deadline may renew, but Moussavian questioned the administration’s commitment to processing applications in a timely fashion after killing DACA.

Tom Tait, a Republican mayor from Anaheim, California, said Congress needed to resolve the “untenable situation” Dreamers now face but was hopeful. “Maybe the reason I’m optimistic is because there is a deadline,” the mayor said.

Hitting March 5 without a bipartisan solution in place could change the dynamics of the situation quite a bit or not at all. Trump has waivered on whether to extend that “deadline” of sorts.

Moussavian advised the mayors that Trump’s desire to “be viewed favorably” conflicts with the fact his base “looks to the president for an anti-immigrant agenda,” making White House statements regarding Dreamers unreliable.

“What is clear and what will remain consistent regardless of the position of the White House between now and March 5, and certainly only starkly more clear after March 5, is that the pain and suffering that is happening in all of your communities will only become more pronounced,” she said. “And what I would say to all of you is, as much as there is room to really push policies at the local level and the state level, advance protections.”

Gary, Indiana passed a “Welcoming City” ordinance that Mayor Karen Freeman-Wilson said complied with federal immigration law, only to be preempted by a new state statute requiring cities’ active cooperation. In November, the city was subsequently sued by a group of citizens, including a former municipal judge, and employing attorney James Bopp, known for representing conservative nonprofit Citizens United in its landmark 2010 case against the Federal Elections Commission.

Leaders in Austin face a similar position after Texas state lawmakers passed a sanctuary cities ban and the city was promptly sued the following day. The only problem, Mayor Steve Adler said, was the law failed to go into effect for another two months and was “impossibly vague” on how cities are to assist the feds.

In a setback for Austin, the Fifth U.S. Circuit Court of Appeals lifted part of a lower court injunction protecting jail officials from being required to honor Immigration and Customs Enforcement detainers. The panel of three judges instructed cities to abide by current federal immigration law on detainers, rather than detainer requests themselves.

Austin is complying and that is why it did not appear on Justice Department’s latest list of 23 jurisdictions it says are out of compliance.

The state ban in Texas also includes a provision where the attorney general and the governor have the ability to remove local officials from office who endorse a policy different than the one it codifies.

“Clearly that can’t be constitutional,” Adler said. “I do however have a very supportive city. Everyone has offered to visit me in jail.”

Letters the Justice Department sent to the 23 jurisdictions demand documents that may prove they’re prohibiting law enforcement from sharing information with federal immigration authorities. The department will subject them to subpoenas if they fail to do so quickly and completely.

Some mayors extrapolated that the Justice Department  was threatening arrests, but the agency generally uses administrative subpoenas to gather information about investigations, according to Vanderbilt Law School professor Christopher Slobogin.

“If information obtained this way provides evidence of crime, the relevant parties can be criminally charged,” Slobogin wrote Route Fifty in an email.

Cities still have the option of petitioning a federal court to quash the subpoena and can appeal, he added, but they’re unlikely to succeed because the Justice Department needs to only prove it’s seeking information pertaining to enforcing a statute—in this case 8 USC 1373.

Haussmann said Attorney General Jeff Sessions is reinterpreting Section 1373 in Chicago v. Sessions because, while it prevents the city from barring police from providing ICE with details on undocumented immigrants, they simply “don’t make it a point to collect such information.”

Mayors at the meeting took issue with Sessions’ frequent call-outs of cities whose compliance he questioned, including the most recent 23.

“I’ve got authority that if he singles out a mayor like he’s been doing with [Chicago Mayor Rahm] Emanuel and others, the bipartisan board said I should say something,” Tom Cochran, the U.S. Conference of Mayors’ CEO and executive director, told Route Fifty in a Wednesday interview. “We represent mayors, and he’s attacking one of our own.”