DOJ Forges Ahead With Immigration Enforcement Grant Requirements

The U.S. Justice Department is continuing its push to link law enforcement grant awards for state and local governments to immigration-related requirements.

In an announcement last Thursday, the department said that applicants for four grant initiatives with at least $10 million in estimated available funding would have to certify that they are in compliance with a set of immigration enforcement conditions.

The conditions are similar to those DOJ sought to impose in July of last year on the fiscal year 2017 Edward Byrne Memorial Justice Assistance Grant program, known as Byrne JAG for short.

These requirements, along with an executive order that President Trump issued targeting “sanctuary” jurisdictions, have prompted court challenges from cities. Local governments have won favorable rulings from federal judges, including Philadelphia and San Francisco. But the federal government has appeals in the works.

Chicago has also been sparring with the Justice Department over the Byrne JAG conditions.

A federal appeals court last week temporarily narrowed a nationwide injunction tied to the Chicago case that was blocking DOJ from imposing the requirements on grant applicants. Instead the court said the injunction only applied, for now at least, to Chicago.

Amid this legal wrangling came last week’s grant notice, which according to some experts, adds more complications to an already messy situation.

“The clarity is not there,” said Yucel Ors, federal advocacy program director for the National League of Cities, about the conditions for grant applicants.

“What does certification require?” he added. “Cities have submitted certifications and then DOJ comes back says, ‘well, this is not sufficient, we need more information.’”

The Justice Department’s press office did not reply to an emailed list of questions sent Tuesday asking for more information about the grant requirements.

But the department described the four grant programs as follows:

• Field-initiated programs to improve officer and public safety, which invites applicants to “pilot, assess, and implement original approaches that target emerging or chronic crime problems facing the country and placing our officers and public at risk.” (Estimated total funding for the program is $2.5 million.)

• Pilot projects using data-driven systems to reduce crime and recidivism, which calls on applicants to “reduce recidivism and crime by improving the effectiveness of risk assessments and to provide a more data-driven approach system-wide.” (Estimated total funding for the program is not clear, but maximum awards are $3.3 million.)

• Gang suppression planning grants for building capacity for a multilateral data-driven strategy to promote public safety. The program seeks to understand a jurisdiction’s “gang landscape” and to be able to use data to develop “effective gang control strategies.” It is aimed at reducing youth violence, particularly gun and gang violence, along with other goals. (Estimated total funding is $1 million.)

• A law enforcement and prosecutorial approach “to address gang recruitment of unaccompanied alien children” program, which “invites jurisdictions that have high levels of youth-perpetrated gun crime and gang violence and that can demonstrate a willingness and readiness to develop fully comprehensive community- and data-driven responses. Funding will support selected jurisdictions to undertake strategic planning and capacity-building work through multidisciplinary and community partnerships.” (Estimated total funding is $7.2 million.)

The first condition DOJ says it has in place for applicants for these grants is that the applicants are in compliance with parts of the U.S. Code known as 8 USC 1373 and 1644.

These sections of federal law stipulate that state and local governments cannot block or restrict information sharing with federal authorities about a person’s citizenship or immigration status.

Compliance with 8 USC 1373 has been one of the issues at the center of DOJ’s previous efforts to crack down on jurisdictions with what it views as sanctuary policies in place.

Ors said he’s not aware of any cities that are out compliance with 8 USC 1373 and 1644. But he noted there are still unsettled questions about what compliance entails.

“That’s why it’s going through the courts,” he added.

Chicago, for instance, has argued it is in compliance with 8 USC 1373 and has said that it does not collect information on immigration status, and therefore has no information to share.

Two other requirements in last week’s grant announcement include:

• “When practicable,” grant applicants would have to “provide advance notice before releasing a criminal alien from a state or local detention center.”

• And they would have to permit Department of Homeland Security staff to access criminal detention facilities “in order to meet to conduct interviews of criminal aliens in state or local custody.”

These conditions are similar to the “notice” and “access” requirements that the Justice Department placed on Byrne JAG grant applicants last year that have been central to the court fights with cities.  

A fourth condition says that cities have to “comply with federal criminal laws related to the harboring of illegal aliens.”

“I am not sure where that came from,” Ors said. “Local governments have to comply with federal laws, regardless of if it is about immigration.”

He expressed confidence that the additional requirements the Justice Department is attempting to put in place for grant applicants will eventually be struck down in court.

But in the meantime, he added: "This type of announcement creates even greater ambiguity.”