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Play or Pay: Feds Threaten to Cut Law Enforcement Grants to Sanctuary Cities

The U.S. DOJ has sent letters to Newark and Middlesex County — along with cities nationwide — warning that not working with immigration authorities could mean loss of funding

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In what could be the first skirmish in the fed’s fight with local governments in New Jersey over the issue of immigrant “sanctuaries,” justice officials have informed two New Jersey localities and more than two dozen others across the nation that federal law enforcement grants hinge on their agreeing to work with immigration enforcement authorities.

The U.S. Department of Justice sent letters to Newark and Middlesex County, as well as other locations throughout the country last Wednesday, the same day a U.S. District Court judge ruled the DOJ cannot withhold federal funds from Philadelphia due to its sanctuary status.

The DOJ’s notices were dated a day after Rep. Bill Pascrell, D-9th co-authored a letter that suggests U.S. Attorney General Jeff Sessions is holding up the release of funds to all jurisdictions because of his concerns about alleged noncompliance by some. These jurisdictions, according to the DOJ, may be cooperating with immigration enforcement demands. Pascrell and Rep. Dave Reichert, a Washington Republican with whom Pascrell co-chairs of the House Law Enforcement Caucus, urged Sessions to promptly give localities all the funds they are due under the Byrne JAG program.

The DOJ allocated $174 million nationwide in the fiscal year that ended September 30 through the Byrne JAG program for state and local law enforcement, courts, crime prevention and education, corrections, drug treatment and enforcement, planning, technology, crime victims, and mental and behavioral health programs related to law enforcement.

According to the DOJ, the program calls for 41 New Jersey municipalities to receive a total of $1.8 million and the state itself is slated to get $4 million to aid law enforcement. Newark stands to lose the most of any New Jersey municipality — $327,993. While Middlesex County does not get any funds itself, it is a partner with four communities — Edison, New Brunswick, Perth Amboy, and Woodbridge — that are supposed to get a combined $89,453.

No money for sanctuaries

While the grant sums may be relatively small for some cities, withholding them is an effort to carry out an executive order signed soon after Donald Trump assumed the presidency, which forbids sanctuary jurisdictions from receiving most federal grants.

Still, at least one New Jersey official was unmoved by the government’s threats, as Newark Mayor Ras Baraka said in a statement: “We intend to continue our policy of protecting undocumented immigrants from the unconstitutional policies of the Trump administration.”

And it is unclear whether the recent U.S. District Court order in the Philadelphia case will impact the DOJ’s stance, or whether New Jersey jurisdictions will have to go to court to seek a similar ruling. Last week, U.S. District Judge Michael Baylson ruled that the DOJ cannot force Philadelphia to provide it with the immigration status of people in city custody as a requirement for receiving Byrne JAG funds.

On Nov. 15, the DOJ announced it had sent letters to 29 localities, Newark and Middlesex among them, about their compliance with a federal statute known as Section 1373 that it said “promotes information sharing related to immigration enforcement.” Others, including the Immigrant Legal Resource Center, contend the statute does not require state or local governments to do much of anything, but only prohibits them from “enacting laws or policies that limit communication” with the U.S. Department of Homeland Security about individuals’ immigration and citizenship status.

‘Protecting criminal aliens’

In announcing the letters, Sessions said in a statement: “Jurisdictions that adopt so-called ‘sanctuary policies’ also adopt the view that the protection of criminal aliens is more important than the protection of law-abiding citizens and of the rule of law. I urge all jurisdictions found to be potentially out of compliance in this preliminary review to reconsider their policies that undermine the safety of their residents. We urge jurisdictions to not only comply with Section 1373, but also to establish sensible and effective partnerships to properly process criminal aliens.”

The letters remind the localities that they agreed to comply with Section 1373 as a condition of receiving a grant in the 2016 fiscal year and that they must comply with the statute to receive a 2017 award. It gave officials until December 8 to prove that their laws, policies, and practices comply.

Message to Middlesex County

In a letter to the Middlesex County Clerk, Acting Assistant Attorney General Alan Hanson wrote that the county’s policy to not agree to requests from U.S. Immigration and Customs Enforcement to detain immigrant offenders for 48 hours may violate Section 1373. If Middlesex County chooses to not provide ICE with notice of an undocumented immigrant's release from custody, that could make it ineligible for Byrne JAG funds.

Newark’s letter cites three possible violations: not honoring immigration detainer requests, not investigating a person’s citizenship status, and not sharing such confidential information as national origin, criminal history and incarceration release date.

Middlesex officials did not return a request for comment. Newark Mayor Ras Baraka, who last June signed an executive order spelling out the city’s “sanctuary city” policy, said in a statement that he believes the city is within its constitutional rights and will not make any changes in its policies, which include not spending city resources to assist immigration authorities unless required by law.

“To date, the courts have not upheld the attorney general’s right to block funding for cities that constitutionally protect undocumented immigrants,” Baraka said.

In addition to the Philadelphia case, federal judges have ruled against similar government efforts to withhold funds to Chicago, Seattle and Portland, OR.

No violations?

Thomas A. Saenz, president and general counsel of MALDEF (Mexican American Legal Defense and Educational Fund), said that while the DOJ may argue that each locality’s policy is different and so past decisions do not set a precedent, it does not appear that any of the local policies cited in the letters violates the statute.

“The letters rest on Jeff Sessions’ fantasy version of the law rather than any reasoned interpretation of the limited restrictions actually set forth,” Saenz said in a statement. “Sessions plainly hopes that his ludicrous and recurrent bluster about immigrants, coupled with the threatening letters … will somehow convince jurisdictions to abandon their lawful local policies.”

He added that all jurisdictions that are unable to “challenge the Sessions bullying in federal court” can seek assistance from MALDEF and the organization will represent them without cost.

“We urge all of the threatened jurisdictions to stand by their righteous policies, and we offer our legal support in doing so,” Saenz said.

Baraka was not cowed by the DOJ’s threat, pledging that Newark “will protect undocumented immigrants from the attorney general’s unconstitutional policies.”

But Pascrell is disturbed that the DOJ may have an agenda in its awarding or withholding of federal law enforcement grants. In commenting on DOJ’s announcement Monday of federal COPS funds, including $4.25 million to six New Jersey agencies, he said, “I remain very concerned the administration is trying to force federal immigration priorities onto local law enforcement priorities.”

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