Attorney General Becerra Leads Friend-of-Court Brief in Support of San Francisco, Santa Clara and Richmond Challenge to Trump’s Executive Order
(From Press Release) – On Thursday, the US House Republicans passed legislation targeting the funding for sanctuary cities. Kate’s Law, named for Kate Steinle, murdered two years ago by an undocumented immigratnt who was deported multiple times, would increase maximum penalties for undocumented immigrants who repeatedly enter the country illegally after deportation, especially with criminal records.
The “No Sanctuary for Criminals Act” would expand what is required of cities regarding federal immigrant enforcement and allow the government to deny jurisdictions federal law enforcement funds if they fail to comply.
California Attorney General Xavier Becerra Thursday is fighting back.
He led nine states and Washington, DC in filing a friend-of-the-court brief in the United States District Court, Northern District of California, in support of the City and County of San Francisco, the County of Santa Clara, and the City of Richmond in their challenge to the Trump Administration’s executive order targeting “sanctuary jurisdictions.” The executive order seeks to pressure local jurisdictions into enforcing federal immigration law.
“The Trump Administration does not have the right to coerce states, counties or municipalities to do the federal government’s job,” said Attorney General Xavier Becerra. “California’s state and local law enforcement officials are in the business of public safety, not of deportation. Threatening public safety funding to compel localities to do immigration work is a dangerous game that undermines public safety.”
Earlier this year, the district court issued a nationwide preliminary injunction, prohibiting the Trump Administration from enforcing executive order provisions that threaten to broadly strip federal funds from states and localities the Trump Administration designates as “sanctuary jurisdictions.” The Trump Administration is now asking the court to dismiss the lawsuit, even though the executive order provisions remain unchanged.
In addition to highlighting the flaws in the federal government’s motion, the brief highlights the public safety benefits arising from policies that focus local law enforcement agencies on crime prevention rather than enforcement of federal immigration law. Attorney General Becerra was joined by the attorneys general of Connecticut, Delaware, Washington, D.C., Illinois, Maryland, Massachusetts, New Mexico, New York, Oregon, and Washington in filing the brief.
In March, Attorney General Becerra filed an amicus brief on behalf of the State of California in support of the jurisdiction’s request for a preliminary injunction. The court issued its preliminary injunction on April 25. In issuing the injunction, the Court raised concerns about the constitutionality of President Trump’s attempt use “coercive methods” to compel jurisdictions into adopting the Trump Administration’s preferred immigration enforcement practices.
Attorney General Becerra, in collaboration with the Attorneys General of New York, the District of Columbia, Rhode Island, Oregon, and Washington, released a report last month that refutes the Trump Administration’s claims on so-called “sanctuary” policies. The “Setting the Record Straight on Local Involvement in Federal Civil Immigration Enforcement: The Facts and The Laws” report outlines how the experience of many local law enforcement agencies has led them to conclude that public safety is better served by focusing their time and resources on combatting dangerous criminals rather than on immigration enforcement.
The brief calls Executive Order 13768, “an aggressive attempt by President Trump to coerce state and local jurisdictions into participating in immigration enforcement, even in situations where that participation would undermine public safety and go against the best judgment of the law enforcement officials who are most familiar with local communities.”
Among other things, “the Executive Order: reinstates the federal “Secure Communities” program, which enlists local authorities in detaining persons the federal government believes to be removable.”
It “directs that eligibility for federal funds will depend on whether a jurisdiction willfully refuses to comply with 8 U.S.C. 1373, a federal statute regarding the sharing of “information regarding the citizenship or immigration status” of individuals with the federal government.”
It “gives the Secretary of Homeland Security discretion to designate local jurisdictions as “sanctuary jurisdictions”; orders the Secretary to publish a weekly report of jurisdictions that decline detainer requests; and orders the United States Attorney General to take enforcement action against entities that violate Section 1373 or have statutes, policies, or practices that prevent or hinder the enforcement of Federal law.”
The brief argues that California has the largest immigrant population in the nation, and relies on $90 billion in federal funding annually. “California’s interests would be directly affected by any decision construing this Executive Order,” the AG writes in the brief. “Although no California law conflicts with Section 1373, the Executive Order has created concern and confusion for residents and local jurisdictions within this State.”
The Secure Communities program “caused direct harm within the State of California. Residents who had been held pursuant to ICE detainer requests sued to vindicate their constitutional rights. Several of our local governments paid settlements to such plaintiffs out of state and local tax revenues.”
These concerns led the legislature to adopt the TRUST Act, “which aimed to retain an appropriate amount of state and local discretion in determining whether considerations of public safety weigh in favor of cooperating with federal immigration enforcement.”
In 2014, DHS announced that the Secure Communities program would be discontinued, acknowledging an “increasing number of federal court decisions that hold that detainer-based detention by state and local law enforcement agencies violates the Fourth Amendment.”
ICE created a new program entitled “Priority Enforcement Program” to replace Secure Communities.
While the new program still relied on fingerprint-based biometric data submitted by state and local law enforcement to the FBI, the government replaced the original detainer requests with “requests for notification,” “requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority.”
The AG writes, “Requests for detention were only to be used in special circumstances where consistent with the requirements of the Fourth Amendment.”
Executive Order 13768 rstores the Secure Communities Program “without addressing any of the concerns that DHS had previously raised about Secure Communities.”
The AG office, noted that while ICE released its first weekly list of jurisdictions that declined detainer requests but noted, that ICE admitted that “it does not document, in a systematically reportable manner, the immigration status of an alien at the time of detainer issuance.”
The AG argues, “If ICE cannot provide documentation to local law enforcement of an individual’s immigration status when it issues a detainer, it is unclear how it can provide the independent probable cause necessary under the Fourth Amendment for state and local law enforcement agencies to constitutionally detain individuals based only on that detainer.”