Frequently Asked Questions: Executive Order 13768 on Interior Immigration Enforcement and Recent Sanctuary City Litigation

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What is Executive Order 13768, and what does halting implementation of Section 9(a) of EO it attempt to do? 13768, which relates to funding for sanctuary jurisdictions. This injunction was granted in The President issued Executive Order (EO) a lawsuit filed by Santa Clara County and the 13768 on January 25, 2017.1 It is a legally City and the County of San Francisco. The binding order which primarily deals with en- DOJ has appealed to the Ninth Circuit, with forcement of immigration in the interior of the a hearing that occurred February 28, 2018. United States. EO 13768, among other things, The city of San Francisco has also requested deputizes state and local law enforcement to a declaratory judgement that its sanctuary city carry out immigration laws, calls for addi- laws comply applicable federal law, namely 8 tional 10,000 U.S. Immigration and Customs U.S.C. 1373. Enforcement (ICE) officers, attempts to with- hold funding from sanctuary cities, and vastly Chicago: expands deportation priorities. A case, Chicago v. Sessions, challenging EO What litigation has stemmed from the EO 13768 brought forth in Chicago resulted in a 13768 and sanctuary cities generally? nationwide preliminary injunction, which was issued on September 15, 2018. The prelimi- There are several city-led lawsuits related to nary injunction bars the Attorney General from the implementation of EO 13768. These cases imposing new notice and access conditions on are located primarily in California, Illinois and certain funding. The nationwide preliminary Pennsylvania. injunction in the Chicago v. Sessions case is on appeal to the Seventh Circuit, which heard oral In addition to the city-led lawsuits, the De- arguments on January 19, 2018. partment of Justice initiated its own lawsuit against the State of California on March 6, Philadelphia: 2018. Please see our FAQ on the DOJ Lawsuit available here. In the case, Philadelphia v. Sessions, a federal district court issued a preliminary injunction What are the key developments in the city-led on November 15, 2017, in Philadelphia barring lawsuits? the Attorney General from imposing the new notice and access conditions on certain federal Below is a short discussion of Northern Cali- grants. The Court also found that the City of fornia, Chicago, and Philadelphia litigation. Philadelphia is in “substantial compliance” with relevant federal law, 8 U.S.C. 1373, and Northern California: therefore cannot be denied federal grants based on alleged failure to comply with those re- On April 25, 2017, the U.S. District Court for quirements. The Third Circuit has set a March the Northern District of California issued a na- 26th deadline for the government’s brief in tionwide “preliminary injunction”2 temporarily their appeal of the Philadelphia case. What is a preliminary injunction? sary for law enforcement purposes by Courts issue preliminary injunctions to prevent the AG or the Secretary. The Secretary the actions (in this case, implementation of a has the authority to designate, in his particular law) of one party to a lawsuit from discretion and to the extent consistent causing the other irreparable harm prior to a with law, a jurisdiction as a sanctuary 3 jurisdiction. The AG shall take appro- final decision in the case. In order to issue this priate enforcement action against any hold, the court must consider whether irrep- entity that violates 8 U.S.C. 1373, or arable harm to the party will or has occurred, which has in effect a statute, policy, or among other factors.4 practice that prevents or hinders the enforcement of federal law.”8 Do the respective orders in the city-led cases entirely halt implementation of the EO? What does 8 U.S.C. 1373, referenced in EO 13678, require? No. The orders only apply to Section 9(a) of EO 13768, which addresses funding for sanctuary This law prohibits local government entities or jurisdictions, or related efforts to limit certain officials from restricting communication with ICE regarding an individual’s immigration sta- federal funding to sanctuary cities. The rest of 9 EO 13768, which broadens the categories of tus. individuals who are priorities for deportation EO 13678 mentions “sanctuary jurisdictions” and increases the number of ICE officers, still what is a “sanctuary jurisdiction”? Is it differ- has legal force and is being implemented by the ent than “sanctuary cities”? government. It is important to note on the funding to sanctuary jurisdictions issue, the federal At this point, it is unclear what exactly the government is still allowed to enforce existing Administration means by “sanctuary juris- conditions on federal grants or general compli- dictions,” and this lack of clarity is one of the ance with 8 U.S.C. 1373.5 reasons the Northern California district court issued the preliminary injunction. “Sanctuary Which federal grants are currently tied to com- jurisdictions” is a term used in EO 13678. While pliance with 8 U.S.C. 1373? jurisdictions that fail to comply with 8 U.S.C. The U.S. Department of Justice (DOJ) has 1373 are deemed sanctuary jurisdictions under previously conditioned three federal grants on EO 13678, the full definition of “sanctuary ju- compliance with 8 U.S.C. 1373, as indicated in risdictions” is unclear as it is not defined in the recent guidance6 and statements.7 These grants EO. The District Court noted that it plausibly could be interpreted to include jurisdictions that are the: 1) State Criminal Alien Assistance Pro- 10 gram; 2) Edward Byrne Memorial Justice As- fail to comply with detainer requests. Howev- sistance Grant; and 3) Community Oriented Po- er, given the ambiguity in EO 13678, it seems licing Services Grant. that some but not all “sanctuary cities” could fall within the definition of “sanctuary jurisdic- What does EO 13768 say about sanctuary tions.” jurisdictions? “Sanctuary cities” policies are adopted through The EO attempts to limit the ability of sanctuary ordinances, local laws, or policies by cities and jurisdictions to receive federal grants. Specifi- municipalities. There is no official definition of cally, it states in Section 9(a) that: a “sanctuary city,” but some elements include: “[T]he Attorney General (AG) and the • “Policies or laws that limit the extent to Secretary [of Homeland Security], in which law enforcement will go to assist their discretion and to the extent con- the federal government on immigration sistent with law, shall ensure that juris- matters.” dictions that willfully refuse to comply • Policies that disregard requests from ICE with 8 U.S.C. 1373 (sanctuary jurisdic- to hold indefinitely immigrant inmates tions) are not eligible to receive Fed- beyond their detention dates (commonly eral grants, except as deemed neces- known as “detainers”).

Page 2 • Policies that bar local police from asking for proof of citizenship and from arresting immigrants who lack documentation un- less they are suspected of other criminal offenses. Has USCCB or individual bishops spoken out against this EO? Yes. Bishop Joe S. Vásquez of Austin, Texas and chairman of the U.S. Bishops’ Committee on Migration issued a statement on EO 13768 which can be found here,11 and Cardinal To- bin of Newark, New Jersey issued a statement which can be found here.12 In addition, the issue of sanctuary cities is one with which the U.S. bishops have long been involved.13 (Last Updated: 3/8/2018)

Endnotes

1 President Trump, Executive Order: Enhancing Public Safety in the Interior of the United States (Jan. 25, 2017), available at https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united. 2 Order Granting Motion to Enjoin, County of Santa Clara v. Trump, No. 17-cv-00574 (N.D. Cal. April 25, 2017). 3 American Bar Association, Understanding Injunctions, INSIGHTS ON LAW AND SOCIETY (2014), available at http://www.americanbar.org/publications/insights_on_law_andsociety/14/winter-2014/understanding-injunctions.html. 4 The court must also find that the party requesting the preliminary injunction is likely to succeed on the merits of the lawsuit, the balance of equities tips in that party’s favor, and issuing a preliminary injunction would be in the public’s interest. Id. 5 Id. at 49. 6 Letter from Peter J. Kadzik, Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon John A. Culberson, Chairman of the Subcomm. On Commerce, Justice, Sci & Related Agencies, (Jul. 7, 2016), http://culberson.house. gov/uploadedfiles/2016-7-7_section_1373-_doj_letter_to_culberson.pdf.. 7 See Order Granting Motion to Enjoin, supra note 2, at. 6. 8 Executive Order, supra note 1, at § 9(a) (emphasis added). 9 8 U.S.C. § 1373. 10 Order Granting Motion to Enjoin, supra note 2, at 21. “Detainers” are requests by ICE to local law enforcement to hold an individual in custody beyond his or her release date in order to allow ICE time to determine whether it will take custody of the individual and seek removal. 11 USCCB Committee on Migration Chair Responds to Trump Administration Sanctuary City Executive Order, JUSTICE FOR IMMIGRANTS, https://justiceforimmigrants.org/statements/usccb-committee-migration-chair-responds-trump-administration-sanctuary-city-executive-order/ (last visited April 27, 2017). 12 Statement of Cardinal Joseph W. Tobin, C.Ss.R., On Wednesday’s Executive Actions on Immigration, ARCHDIOCESE OF NEWARK (Jan. 27, 2017), http://www.rcan.org/statement-cardinal-joseph-w-tobin-cssr-wednesday%E2%80%99s-executive-actions-immigration. 13 See, e.g., Statement of Archbishop Salvatore J. Cordileone to the U.S. Senate and House Judiciary Committees (July 21-23, 2015), http://sfarchdiocese.org/docs/default-source/communication-office/ media-items-2015/statement-of-archbishop-cordileone-to-us-house-and-senate-judiciary-committees. pdf?sfvrsn=2.